CLA-2-16:OT:RR:NC:N2:231
Ms. Karen West
Earth Consulting Inc.
1025 W Arbor Vitae
Inglewood, CA 90301
RE: The tariff classification and country of origin of Breaded Shrimp
Dear Ms. West:
In your letter dated May 27, 2021, you requested a tariff classification ruling and country of origin determination on behalf of your client, International Pacific DBA Pacific Supreme Company (Redondo Beach, CA).
You have presented two scenarios as follows:
In the first scenario, you state that shrimp is thawed, peeled, deveined, pre-dusted (breaded) and frozen in China. The pre-dusting will comprise 10-11 percent of the total weight of the product. The shrimp is exported to Vietnam where it is battered, pan-fried and frozen. The finished product will be packed in 20-pound cases.
In the second scenario, you state that shrimp from China, India, Ecuador or Indonesia is thawed, peeled, deveined and frozen in China. The shrimp is exported to Vietnam where it is pre-dusted (breaded), battered, pan-fried and frozen. The pre-dusting will comprise 10-11 percent of the total weight of the product. The finished product will be packed in 20-pound cases.
You seek a determination as to the proper tariff classification and country of origin of the above-described products for marking purposes.
The applicable subheading for the above-described products will be 1605.21.1020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: “Crustaceans, mollusks and other aquatic invertebrates, prepared or preserved: Shrimps or prawns: Other: Frozen, imported in accordance with Statistical Note 1 to this chapter: Other: Breaded.” The rate of duty will be Free.
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. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. 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).
Regarding the first scenario, the shrimp is thawed, peeled, deveined, pre-dusted (breaded) and frozen in China. The shrimp is exported to Vietnam where it is battered, pan-fried then frozen. The country of origin for the finished product is China for CBP marking purposes.
Regarding the second scenario, shrimp from China, India, Ecuador or Indonesia is thawed, peeled, deveined and frozen in China. The shrimp is exported to Vietnam where it is pre-dusted (breaded), battered, pan-fried and frozen. The country of origin for the finished product is Vietnam for CBP marking purposes.
Being that the country of origin in scenario one has been determined to be China, the shrimp will be subject to the additional duties applicable to products of China under Section 301 of the Trade Act of 1974, as amended, upon importation into the United States.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 1605.21.1020, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 1605.21.1020, 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 USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
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.
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 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 [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division