MAR 2-05 CO:R:C:V  732337 LR
District Director of Customs
          Charleston, South Carolina
          RE:  Country of Origin Marking of Canned Crab meat
          Dear Sir:
                This is in response to the April 19, 1989, memorandum from
          the Assistant Special Agent in Charge requesting a ruling on the
          country of origin marking requirements of imported crab meat
          which is processed in the U.S.  We have also considered the
          information submitted directly by Golden Harbor Seafood, Inc. and
          the National Blue Crab Association.
          FACTS:
                Crabs are caught in China where they are cooked, chilled
          and the meat is extracted.  The extracted crab meat is packed in
          plastic bags, frozen in blocks and boxed for shipment to the U.S.
          Upon arrival in the U.S., the crab meat is placed in a freezer
          and is thawed as it is needed to fill orders.  The thawed crab
          meat is placed on a conveyor belt for inspection and sorting
          according to the size of the muscle fibers.  The segregated meats
          are inspected a second time for the removal of any extraneous
          material.  After the second inspection, similar sized domestic
          and foreign crab meats are blended small with small, medium with
          medium, large with large, and claw with claw.  The blend
          generally consists of approximately 20% domestic and 80% foreign
          crab meat.  The blended crab meat is packed in 8 ounce cans and
          is then subjected to a pasteurization process involving a
          substantial heat treatment followed by chilling at 35 degrees F.
          The cans of crab meat are rinsed and labeled.  
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          ISSUE:
                For purposes of 19 U.S.C. 1304, whether crab meat which has
          been extracted from the shell and imported into the U.S. in
          frozen blocks, is substantially transformed when it is processed
          in the U.S. by thawing, sorting by size and to remove extraneous
          material, blending with domestic crab meat, packing in cans and
          pasteurization.
          LAW AND ANALYSIS:
              Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
          1304), requires that, unless excepted, every article of foreign
          origin, or its container, must be legibly, permanently, and
          conspicuously marked to indicate the country of origin to an
          ultimate purchaser in the U.S.  The primary purpose of the
          country of origin marking statute is to "mark the goods so that
          at the time of purchase the ultimate purchaser may, by knowing
          where the goods were produced, be able to buy or refuse to buy
          them, if such marking should influence his will."  United States
          v. Friedlaender & Co., 27 C.C.P.A. 297, 302, C.A.D. 104 (1940)
          (quoted in Globemaster, Inc. v. United States, 68 Cust. Ct. 77,
          79-80, 340 F. Supp. 975-76 (1972) and National Juice Products
          Association v. United States, 10 CIT 48, 628 F. Supp. 978 (1986).
              The regulations implementing the requirements and exceptions
          to 19 U.S.C. 1304 are set forth in Part 134, Customs Regulations
          (19 CFR Part 134).  Under 19 CFR 134.1(d), the ultimate purchaser
          is defined as the last person in the U.S. who will receive the
          article in the form in which it was imported.  If an imported
          article is further manufactured in the U.S. and the manufacturing
          process is merely a minor one which leaves the identity of the
          imported article intact, pursuant to 19 CFR 134.1(d)(2), the
          consumer or user of the article who obtains the article after the
          processing, will be regarded as the ultimate purchaser.
                Foreign natural products (such as crab meat) are on the so-
          called "J-list" and are excepted from individual marking require-
          ments pursuant to 19 U.S.C. 1304(a)(3)(J) and 19 CFR 134.33.
          However, the outermost container in which the article ordinarily
          reaches the ultimate purchaser is required to be marked to
          indicate the origin of its contents.  As provided in 19 CFR
          134.25, if the imported J-list product will be repacked prior to
          sale to the ultimate purchaser, the importer must certify to
          Customs that he will properly mark the new package or
          alternatively, notify the repacker of the obligation to mark the
          new package.  The certification procedures, which are for the
          purpose of ensuring that the ultimate purchaser will be advised
          of the country of origin, apply to imported J-list articles
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          processed and repacked after importation unless the articles are
          substantially transformed prior to repacking.  Absent a
          substantial transformation, the consumer or other recipient of
          the crab meat is considered the ultimate purchaser and must be
          advised of its country of origin.
              Whether a substantial transformation has occurred depends
          upon a comparison of the article before the processing which is
          claimed to effect such transformation and the article after the
          processing.  It is a well-settled principle of customs law that
          in order for a substantial transformation to be found, an article
          having a new name, character or use must emerge from the
          processing.  See United States v. Gibson-Thomsen Co. Inc.,
          27 C.C.P.A. 267, C.A.D. 98 (1940).
                Although neither the courts nor Customs has specifically
          ruled on the country of origin marking requirements of imported
          crab meat which is further processed in the U.S., two court
          decisions involving the country of origin marking requirements
          applicable to imported food products, one on orange juice and
          another on fish, and two recent Customs decisions regarding
          imported shrimp are instructive.
                In National Juice Products, supra, the Court of
          International Trade considered the effects, for purposes of
          marking, of domestic processing of foreign orange juice
          concentrate.  The court upheld Customs determination in HQ
          728557, September 4, 1985, published as C.S.D. 85-47, that the
          imported orange juice concentrate is not substantially
          transformed when it is mixed with other batches of concentrate,
          either foreign or domestic, water, orange essences, orange oil
          and in some cases, fresh juice and either packaged in cans and
          frozen or pasteurized, chilled and packed in liquid form.
          Customs found, and the court agreed, that the domestic processing
          did not produce an article with a new name, character or use
          because the essential character of the final product was imparted
          by the imported concentrate and not the domestic processing.  The
          court stated that "the retail product in this case is essentially
          the juice concentrate derived in substantial part from foreign
          grown, harvested and processed oranges.  The addition of water,
          orange essences and oils to the concentrate, while making it
          suitable for retail sale does not change the fundamental
          character of the product, it is still essentially the product of
          the juice of oranges."  Therefore, the repacked orange juice
          products had to be marked with the country of origin of the
          imported concentrate.  
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                In Koru North America v. United States, Slip Op. 88-162,
          Court of International Trade, decided November 23, 1988, the
          court considered whether the processing of headed and gutted fish
          in South Korea by thawing, skinning, boning, trimming, freezing
          and packaging, changed the name, character or use of the fish so
          as to effect a substantial transformation and render Korea the
          country of origin for purposes of 19 U.S.C. 1304.  The court
          concluded that the processing performed in Korea constituted a
          substantial transformation because it changed the name of the
          article from "headed and gutted fish" to "individually quick-
          frozen fillets" and more importantly, because it vastly changed
          the fish's character.  In this regard, the court noted that while
          the fish arrive in Korea with the look of a whole fish, when they
          leave they no longer possess the essential shape of the fish.
          The court also noted that the fillets are considered discrete
          commercial goods which are sold in separate areas and markets.
          The fact that the products also have different tariff
          classifications was found to be additional evidence of
          substantial transformation.
                Based on the rationale of National Juice Products, supra,
          Customs determined in HQ 731472, June 23, 1988, published as
          C.S.D. 88-10, that the peeling and deveining of shrimp in the
          U.S. does not change the name, character or use of the imported
          product and thus, does not constitute a substantial
          transformation.  In this regard, Customs stated that "the quality
          and size of the product is attributable to the imported product
          and not the domestic processing.  While the peeling and deveining
          changes the physical appearance of the shrimp to a certain degree
          and renders the product ready for eating, in our opinion the
          change is minor and does not fundamentally change the character
          of the imported product.  We believe that in this case the
          imported shrimp similarly imparts the essential character to the
          final product."
                More recently, Customs applied the same rationale in
          determining that imported shrimp which is peeled, deveined and
          cooked in the U.S. is not substantially transformed (HQ 731763,
          May 17, 1989).  Customs found that these processing operations
          are minor ones which leave the identity of the imported shrimp
          intact and likened the cooking process to other processes which
          had previously been determined not to result in substantial
          transformation, i.e., blanching of broccoli (HQ 729365, June 2,
          1985, published as C.S.D. 86-26), roasting of pistachio nuts
          (T.D. 85-158, June 2, 1985) and smoking of salmon (HQ 729256, May
          23, 1988).
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                The crab meat which is the subject of this inquiry is
          processed by thawing, sorting by size and to remove extraneous
          matter, blending with domestic crab meat, packing in cans, and
          pasteurization.  For the reasons indicated below, we conclude
          that none of these operations taken individually or together is
          sufficient to substantially transform the crab meat into a
          product with a different name, character or use.
                First, Customs has consistently ruled that neither the
          thawing nor freezing of a product substantially transforms it.
          For example, in the shrimp rulings, the product was imported in a
          frozen condition, and was thawed, processed and frozen in the
          U.S.  In the broccoli ruling, the product was imported in a fresh
          condition and was processed and frozen in the U.S.  In National
          Juice, the concentrate was imported in a frozen condition and was
          thawed, processed, and in some cases, frozen in the U.S.  In each
          case, no substantial transformation was found because any change
          resulting from thawing and/or freezing was deemed insignificant.
                Customs has also determined that sorting a product
          according to size or to remove extraneous matter is not a
          substantial transformation.  See HQ 730058, June 2, 1987
          (sorting of imported pecans to remove shell pieces and cutting to
          uniform size not a substantial transformation); C.S.D. 88-10 and
          HQ 731763, supra (sorting of shrimp by size not a substantial
          transformation); HQ 724640, July 2, 1984, published as C.S.D. 84-
          112, (filtration of honey to remove contaminants not a
          substantial transformation).  Customs is of the opinion that the
          sorting process does not change the product in any material way.
                Customs position on blending a product from one country
          with the same product of another country is that this process is
          a mere combining rather than a transforming.  See C.S.D. 84-112,
          supra (blending of foreign honey with domestic honey not a
          substantial transformation); HQ 724872, March 1, 1984 (blending
          of Canadian maple syrup with domestic syrup not a substantial
          transformation); and National Juice Products, supra, (blending of
          imported orange juice concentrate with domestic concentrate not a
          substantial transformation).
                One of the two remaining processes to which the imported
          crab meat is subjected is pasteurization.  This is a process
          which exposes the product to a high temperature in order to
          destroy certain microorganisms and prevent or arrest
          fermentation.  Customs has ruled that this process and other
          similar processes (e.g., flash heating and blanching) do not
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          effect a substantial transformation because they maintain and
          preserve the characteristics of the imported product rather than
          change them.  In C.S.D. 85-47, supra, upheld in National Juice,
          Customs ruled that orange juice concentrate which was pasteurized
          and otherwise processed in the U.S. was not substantially
          transformed.  Although there was no separate discussion regarding
          pasteurization, Customs found, and the court agreed, that there
          was no fundamental change in the product as a result of the U.S.
          processing.  In the honey ruling, Customs ruled that flash
          heating, another heating process which destroys yeast and
          prevents fermentation, does not constitute a substantial
          transformation (C.S.D. 84-112, supra).  See also C.S.D. 86-26,
          supra (blanching vegetables, a process which prepares them for
          freezing whereby the vegetables are subjected to steam heat to
          partially cook and retard any deterioration of the vegetable from
          within, does not effect a substantial transformation).
                The remaining domestic processing operation to be
          considered is packing the crab meat in cans.  Two court decisions
          are relevant to this discussion.  In William Camp Co. v. United
          States, T.D. 48623, 24 CCPA 142 (1936), the Court of Customs and
          Patent Appeals considered whether the marking "Packed in Japan"
          was acceptable on canned salmon under {304 of the Tariff Act of
          1930.  Although the decision indicates that the salmon was
          processed and packed in Japan, the particular facts are sketchy
          and there is no indication of what that processing involved.  In
          this regard, the court indicates that the term "packed in Japan"
          clearly implies that the fish were not only packed in cans in
          Japan, but were also prepared for ultimate consumption in that
          country and concludes that the marking was acceptable.  We note,
          however, that while in some instances preparing a product for
          ultimate consumption will also substantially transform it (e.g.,
          the processing performed in Koru, supra), in other cases it will
          not (e.g., the processing performed in National Juice, supra).
          Because the court did not indicate how the salmon was prepared
          for ultimate consumption, the case is not instructive on the
          issue of substantial transformation.  It is clear that William
          Camp Co. does not stand for the proposition that canning alone is
          a substantial transformation.
                In National Juice, some of the orange juice concentrate was
          similarly packed in cans before sale to the ultimate purchaser.
          Despite plaintiff's contention that cost of packing the product
          in cans played a significant role in preserving the retail
          product, the court rejected plaintiff's argument that this cost
          was a factor in determining whether an article has undergone a
          substantial transformation.
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                There is also one Customs Headquarters information letter
          and an unpublished ruling on the issue of canning.  In an
          information letter dated April 24, 1978, 709011, Customs informed
          the inquirer that "snails which are defrosted and canned in
          France would be considered a product of France, for purposes of
          19 U.S.C. 1304, as canning is considered to result in a
          substantial transformation."  No further details or discussion is
          included.  In an unpublished ruling letter concerning the country
          of origin marking requirements for mushrooms grown and packed in
          brine or frozen in Taiwan and China and processed in Hong Kong by
          cleaning, boiling, slicing, canning and sterilizing, Customs
          found that for purposes of country of origin marking, the
          mushrooms are substantially transformed in Hong Kong and are
          required to be marked as a product of Hong Kong when imported
          into the U.S.  HQ 712811, September 18, 1980. 1 /
                We believe that neither the information letter nor the
          mushroom ruling is consistent with the rationale of National
          Juice and the numerous Customs rulings regarding the country of
          origin marking requirements of imported foods products which are
          repacked in the U.S.  Section 134.25, Customs Regulations (19 CFR
          134.25), makes it clear that imported articles which are repacked
          in the U.S. are subject to the requirements of 19 U.S.C. 1304.
          As indicated above, this provision requires country of origin
          marking on repacked J-list articles and other articles incapable
          of being marked.  In our view, packing in cans, is a repacking
          operation which falls within the purview of this provision
          inasmuch as it does not change the essential character of the
          imported crab meat but merely puts the crab meat in a condition
          ready for sale.  We see no reason why crab meat packed in cans
          should be treated differently than crab meat packed in other
          types of containers.
1/ This unpublished ruling, which involves different merchandise
          than the imported crab meat now under review, does not establish
          a position under the terms of 19 CFR 177.10(c).  See Superior
          Wire v. United States  669 F. Supp. 474 (CIT 1987) affirmed 867
          F.2d 1409 (Fed. Cir. 1989).  Moreover, for all practical
          purposes, section 1907(b) of the Omnibus Trade and
          Competitiveness Act of 1988 (Pub. L. 100-418) makes the mushroom
          ruling a nullity.  The statute provides that imported preserved
          mushrooms shall not be considered to be in compliance with
          section 304 of the Tariff Act of 1930 (19 U.S.C. 1304) or any
          other law relating to the marking of imported articles unless the
          containers thereof indicate in English the country in which the
          mushrooms were grown.
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                Considering the effect of the domestic processing as a
          whole on the imported crab meat, we find that the processing does
          not substantially transform it into a product with a new name,
          character or use.  With regard to name, we note that although the
          imported product may be referred to merely as crab meat and the
          finished product as canned crab meat, the name of the product,
          i.e., crab meat, remains essentially the same.  The use of the
          product is also unchanged as a result of the domestic processing.
          The use of the product is determined prior to importation when
          the crab meat is extracted from the shell.  At that time, the
          product can no longer be used as whole crab, but can only be used
          as crab meat.  The sorting, blending and other domestic
          processing steps do not change this use. 2/  Finally, the
          character of the crab meat is not changed by the domestic
          processing.  Unlike the processing performed in Koru which
          "vastly changed the character of the fish" from a product with
          the look of a whole fish to fillets, the domestic processing of
          the imported crab meat leaves the character of the product
          virtually unchanged.  The finished product looks very similar to
          the imported product, undoubtedly tastes very similar and has the
          same characteristics of the imported crab meat (e.g., the quality
          of the crab meat and the size of the muscle fibers is
          predetermined).  We believe the variety of the crab determines
          the character of the crab meat, not the sorting, blending,
          canning and other minor processing performed in the U.S.
          Therefore, we find that the essential character of the product is
          imparted by the imported crab meat and not the domestic
          processing.  Both at the time of importation and after the
          domestic processing, the product is essentially the meat from
          crabs.
                Based on the above considerations, we conclude that the
          imported crab meat is not substantially transformed as a result
          of the domestic processing.  Therefore, the consumer who obtains
          the crab meat after the processing is the ultimate purchaser.
          This determination is consistent with the primary purpose of the
          country of origin marking statute which is to mark the goods so
          that at the time of purchase the ultimate purchaser may, by
          knowing where the goods were produced, be able to buy or refuse
          to buy them, if such marking should influence his will.  This
          purpose is not served if the canned crab meat is not required to
          indicate the country of origin of the imported product.
          2/ Customs has ruled that for purposes of the coastwise laws that
          crab meat, whether or not canned and/or cooked, is a
          substantially enough different product from the whole crab from
          which it is extracted so as to constitute a new and different
          product.  See  HQ 109504, August 12, 1988; affirmed HQ 109793,
          May 31, 1989.  
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          HOLDING:
                For purposes of 19 U.S.C. 1304, the domestic processing of
          imported crab meat by thawing, sorting, blending with domestic
          crab meat, canning and pasteurization does not constitute a
          substantial transformation.  Accordingly, the repacked crab meat
          is subject to the country of origin marking requirements of 19
          U.S.C. 1304 and 19 CFR Part 134 and the importer must follow the
          certification procedures of 19 CFR 134.25.  So long as the
          country of origin of the crab meat is clearly stated, the label
          may also indicate that the crab meat is processed in the U.S.
          EFFECTIVE DATE:
                To enable processors sufficient time to obtain properly
          labeled new containers for the imported crab meat and to deplete
          much of the present inventory, the ruling will apply to crab meat
          imported for consumption or withdrawn from warehouse on or after
          January 1, 1990.
                                        Sincerely,
Harvey B. Fox
                                        Director, Office of
                                        Regulations and Rulings