MAR-2 OT:RR:NC:N2:231
Mr. Corey Fronek
Seafood Doctor, Inc.
4848 Airway Drive
Central Point, OR 97502
RE: THE COUNTRY OF ORIGIN OF FROZEN SCALLOPS
Dear Mr. Fronek:
This is in response to your letter dated May 16, 2019 requesting a country of origin determination for Frozen Scallops.
You have outlined a scenario whereby Japanese Scallops (Patinopecten yessoensis) harvested in Japan are exported frozen, whole, in shell to China where they are thawed, shucked, soaked in a water solution typically containing the additive sodium tripolyphosphate and individually quick frozen (IQF). The product is sorted by count, placed in 1-pound or 5-pound retail bags, and packed in 10-pound or 30-pound boxes then subsequently shipped to the United States. The product will be sold to distributors, wholesalers, and retail stores. You ask whether the processing in China would constitute a “substantial transformation” of the merchandise at issue, consequently requiring the frozen Japanese Scallops (Patinopecten yessoensis) to be marked “Product of China.”
With regard to country of origin, Section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Pursuant to 19 CFR Section 134.1(b), the country of origin is the country of manufacture, production or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such country the country of origin within the meaning of Part 134 of the regulations. A substantial transformation occurs when an article loses its identity and becomes a new article having a new name, character or use. United States v. Gibson-Thomsen Co., 27 CCPA 267 (1940); National Juice Products Association v. United States, 10 CIT 48 (1986). Whether a substantial transformation occurs is determined on a case-by-case basis.
In Koru North America v. United States, 701 F. Supp. 229 (CIT 1988), the court considered whether the processing of headed and gutted fish in South Korea by thawing, skinning, boning, trimming, freezing, and packaging constituted a substantial transformation. The court concluded that the processing performed in South Korea into “quick- frozen” fillets substantially transformed the headed fish because there was a change in name and character. The court noted that while the fish arrive in South Korea with the look of a whole fish, when they leave they no longer possess the essential shape of a fish. The fillets were considered discrete commercial goods and had a different tariff classification.
In the present case, the scallops are harvested in Japan, processed in China, (i.e., thawed, shucked, soaked in sodium tripolyphosphate), then are refrozen and shipped back to the United States. We find that the scallops have not been substantially transformed as a result of the processing in China, and that therefore the country of origin of the frozen scallops is Japan.
Please note that seafood is subject to the Mandatory Country of Origin Labeling (“COOL”) requirements administered by the USDA’s Agricultural Marketing Service (AMS), we advise you to check with that agency for their further guidance on your scenario.
Contact information for AMS is as follows:
USDA-AMS-LS-SAT
Room 2607-S, Stop 0254
1400 Independence Avenue, SW
Washington, DC 20250-0254
Tel. (202) 720-4486
Website: www.ams.usda.gov/COOL
Email address for inquiries: [email protected]
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling the FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Ekeng Manczuk at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division