CLA-2-16:OT:RR:NC:N2:231

Neil Helfand, Esq.
Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP
599 Lexington Avenue
36th Floor
New York, NY 10022

RE: The tariff classification of Marinated Clams and Seafood Paella

Dear Mr. Helfand:

In your letter dated November 30, 2020, you requested a tariff classification ruling on behalf of Next Wave Seafood Inc., (Childs, MD).

The two products under review are as follows:

Spanish Seafood Paella is composed of cooked rice, mussels (21 percent), clams (10 percent), and red Argentina shrimp (8 percent), a Spanish style sauce, red peppers, and peas. You state that all the ingredients are frozen and assembled on a tray, the sauce is added, and the product is packaged and shipped to the United States. The Spanish Seafood Paella, which will be packed 12 per master carton must be microwaved prior to consumption, and will be sold to retailers.

Marinated Clams in Creamy Butter Garlic Sauce is composed of whole cooked clams (84 percent) combined with a sauce consisting of cream, butter, onions, sunflower oil, garlic, lemon juice, garlic powder, salt, parsley, citrus feel fiber, xanthum gum, and guar gum. You state that the clams are caught in the Central West Pacific ocean and are handpicked in Vietnam where they are boiled then frozen. The clams are exported to Spain where the butter garlic sauce is added before the product is packaged and shipped to the United States. The product, which will be packed in an airtight plastic package with a net weight of 1-pound with 12 packages per each master case. The Marinated Clams in Creamy Butter Garlic Sauce, which must be microwaved prior to consumption, will be sold to retailers.

You seek tariff classification for both items, and a country of origin determination for the Marinated Clams in a Creamy Butter Garlic Sauce.

In your letter, you suggested classification of the Spanish Seafood Paella under review in subheading 1602.20.0510 which provide for "Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Other prepared or preserved fish: Products containing meat of crustaceans, mollusks or other aquatic invertebrates; prepared meals, Prepared meals." We disagree. In cases where the preparation contains two or more of crustaceans, molluscs or other aquatic invertebrates, it is classified in the heading of chapter 16 corresponding to the component or components which predominate by weight. The merchandise under review contains 21 percent mussels.

The applicable subheading for the Spanish Seafood Paella will be 1605.53.0500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: "Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved: Mussels:...prepared meals." The rate of duty will be Free.

The applicable subheading for the Marinated Clams in a Creamy Butter Garlic Sauce will be 1605.56.0500, HTSUS, which provides for: "Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved: Clams, cockles and arkshells:...prepared meals." The rate of duty will be Free.

Pursuant to U.S. Note 21 to Subchapter III, Chapter 99, HTSUS, products of Italy classified under subheading 1605.53.0500 and 1605.56.0500, HTSUS, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the applicable Chapter 99 subheading, i.e., 9903.89.10, in addition to subheading 1605.53.0500 and 1605.56.0500, HTSUS, listed above.

The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the website of the Office of the U.S. Trade Representative, which is available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at https://hts.usitc.gov/current.

The marking statute, 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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

Part 134, CBP Regulations (19 C.F.R. 134) implements the country of origin marking requirements of 19 U.S.C. 1304. 19 C.F.R. 134.1(b) defines "country of origin" as:

[T]he country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of [the marking regulations]...

A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff'd, 989 F. 2d 1201 (Fed. Cir. 1993). However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff'd, 702 F.2d 1022 (Fed. Cir. 1983).

In the case of the above-described Marinated Clams in Creamy Butter Garlic Sauce, this office finds that the article is not substantially transformed due to the processing in Spain. Accordingly, based on the information presented, the goods are a product of Vietnam for CBP marking purposes.

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 C.F.R. 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 ekeng.b.manczuk@cbp.dhs.gov.


Sincerely,

Steven A. Mack
Director
National Commodity Specialist Division