CLA-2-16:OT:RR:NC:N5:231
Ms. Hazel Ing
Flegenheimer International Inc.
227 W. Grand Avenue
El Segundo, CA 90245
RE: The Tariff Classification, Country of Origin, and Marking of Frozen Octopus
Dear Ms. Ing:
In your letter, dated March 18, 2024, you requested a tariff classification ruling and country of origin and marking determination on behalf of your client, Fortuna Sea Products (Long Beach, CA).
You have outlined a scenario in which Octopus with scientific name Cyanea Gray will be caught in the Philippines, frozen, and then shipped to China. In China, the raw product will be inspected, gutted, washed, processed with an acidity regulating product, quick blanched, cooled, graded, weighed, packaged after ozone disinfection, frozen, metal detected, and packed for shipment. The product will be packed in bulk based on sizes, such as 4-5 pieces of octopus per 20 lb. carton, and shipped frozen from China to the United States for sale to wholesalers, distributors, and food service and retailers. The intended uses are for sashimi, poke and ceviche, and further cooking for grilled octopus, siete mares, tacos, and takoyaki.
You seek a determination as to the tariff classification, country of origin, and marking of the above-described product.
The applicable subheading for the Frozen Octopus (Cyanea Gray) will be 1605.55.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for, Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved: Octopus: Other. The rate of duty will be Free.
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.
Part 134 of Title 19 of the Code of Federal Regulations (19 C.F.R. Part 134) implements the country of origin marking requirements of 19 U.S.C. 1304. Section 134.1(b) (19 C.F.R. 134.1(b)) defines country of origin as follows:
[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 above-described frozen octopus, this office finds that the article is not substantially transformed due to processing that is performed in China. Accordingly, based on the information presented, the frozen octopus is a product of the Philippines for Customs country of origin and marking purposes.
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]
The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of CBP and submit a request for a new ruling in accordance with 19 CFR 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.
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 C.F.R. 177).
A copy of the ruling or control number indicated above should be provided with 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