MAR-2 OT:RR:NC:N2:231
Mr. Carlos Rodriguez
Tri Marine Management Company LLC
10500 N.E. 8th Street
Bellevue, WA 98004
RE: The status under the United States-Colombia Trade Promotion Agreement (CTPA) of Canned Tuna in Olive Oil from Colombia
Dear Mr. Rodriguez:
In your letter dated June 10, 2020, you requested a ruling on the country of origin and status of Canned Tuna in Oil from Colombia under CTPA.
You have outlined a scenario in which tuna is caught by a U.S.-flag purse seine tuna fishing vessels on international waters. The fish will be delivered directly to the port of Barranquilla (Colombia) by the catching vessel or alternatively delivered via refrigerated shipping containers transported on commercial shipping vessels. At the aforementioned port, the fish will be sorted according to species and sized according to weight. The butchering process consists of the removal of the head, gills, guts and tail from the larger specimens (over 25-pound) which is then placed on cooking racks according to size. The smaller specimens (less than 25-pound) are placed directly on the cooking racks, also according to size. The fish is steamed, skinned, deboned and the off-color meat is discarded. At this point, the head, gills, guts and tail are also removed from the smaller specimens. The result are precooked loins which are then stacked in filling machines calibrated to a specified fill weight. The product will consist of 85 percent tuna and 15 percent olive oil. The Canned Tuna in Olive Oil will be imported in cases holding either 24 or 48 cans with a net weight of 6 ounces.
Trade Agreement – CTPA
General Note 34, HTSUS, sets forth the criteria for determining whether a good is originating under the CTPA. General Note 34(b), HTSUS, (19 U.S.C. §1202) states, in pertinent part, that
For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, a good imported into the customs territory of the United States is eligible for treatment as an originating good under the terms of this note if—
(i) the good is a good wholly obtained or produced entirely in the territory of Colombia, the United States, or both;
(ii) the good was produced entirely in the territory of Colombia, the United States, or both, and—
(A) each of the nonoriginating materials used in the production of the good undergoes an applicable change in tariff classification specified in subdivision (o) of this note; or
(B) the good otherwise satisfies any applicable regional value content or other requirements specified in subdivision (o) of this note;
and the good satisfies all other applicable requirements of this note; or
(iii) the good was produced entirely in the territory of Colombia, the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note.
For items classified in subheading 1604.14, GN 34/16.3 (A) requires:
A change to tuna loins of subheading 1604.14 from any other chapter.
The non-originating materials are identified from the following countries and classified as follows:
Olive Oil – 1509, HTSUS. The olive oil is produced in Italy
Lids and Ends – 8309, HTSUS. The easy-open lids and ends are produced in Ecuador
Based on the facts provided, the Canned Tuna in Olive Oil qualifies for preferential treatment under the U.S.-Colombia Trade Promotion Agreement because the merchandise meets the requirements of HTSUS General Note 34(b)(ii)(A) and General Note 16/3 (A). The Canned Tuna in Olive will therefore be entitled to a free rate of duty under the CTPA upon compliance with all applicable laws, regulations and agreements.
Country of Origin
The "country of origin" is defined in 19 CFR 134.1(b) as "the 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 this part.
The courts have held that 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); Anheuser Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982).
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 arrived in South Korea with the look of a whole fish, when they left they no longer possessed the essential shape of a fish. The fillets were considered discrete commercial goods and had a different tariff classification.
Concerning the present case, tuna is caught by U.S.-flagged purse seine fishing vessels, processed in Colombia, i.e., pre-cooked by steaming, stripped of the head, tail, fins, skin and guts, deboned, then canned with olive oil and shipped to the United States. We find the processing that occurs in Colombia constitutes a substantial transformation. The country of origin of the finished product is Colombia.
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-SA
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 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