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NY J84290

June 10, 2003

MAR-2 RR:NC:2:231 J84290


Daniel Fusco
Global Food Trading Corp.
14 Mechanic Street
Ramsey, NJ 07446


Dear Mr. Fusco:

This is in response to your letter dated April 28, 2003, requesting a ruling on marking for certain fish which will be further processed, after importation into the United States.

The fish in question will consist of fresh tuna and swordfish which will be imported from various source countries. In condition, as imported, these fish will be in the form of whole fish, which have been eviscerated and beheaded, with tails removed. After importation, the U.S. importer will process the fish into boneless loins, both with skin-on and skinless. These boneless loins will then be frozen.

A customer of the U.S. importer will purchase the frozen loins, skin them (if they are skin-on), then cut the loins into individual portions and, finally, vacuum package the cut portions into cartons under various brand names. Some of the portions may be marinated before packaging.

You state that your company would like to sell some of these vacuum packed, boneless tuna and swordfish portions to the U.S. military and ask whether, for that purpose, you may mark these goods, when processed as described, as product of the U.S.A.

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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article.

The issue raised by your letter is whether the instant tuna loins and swordfish fillets will be so processed, after importation into the United States, as to be considered substantially transformed into an American product. In Koru North America v. United States, 701 F. Suppl. 229 (C.I.T. 1988), the issue before the Court involved certain fish which were harvested by foreign flag vessels in a fishery zone off the coast of New Zealand. After taking, the fish were beheaded, de-tailed, eviscerated and frozen aboard ship. Subsequently, they were offloaded in Korea for further processing. In Korea, the fish were thawed, skinned, boned, trimmed, glazed, refrozen and packaged for exportation to the United States. The Court held, in this case, that the conversion, in Korea, of the frozen “headed and gutted” fish into “individual quick-frozen (IQF) fillets” constituted a substantial transformation of the fish into a new and different product with “a new name, character or use.” The processing facts in Koru would appear to be similar to those in the present case, based on the description provided in your letter. The decision in Koru rested largely on the transformation of what appeared as whole frozen fish to a product which no longer had the shape of the fish,--whose skin and bones had been removed, and which had been trimmed, with fat lines and other impurities removed, then glazed and frozen. In contrast to the headed and gutted fish entering Korea, these fillets were considered discrete commercial goods, sold in separate areas and markets. The instant fish are imported into the United States as whole, headed and gutted, fish. After importation, they are processed into individual portions of boneless fillet, which are vacuum packed and packaged into cartons. These are in the form of frozen, boneless fish fillets,--essentially, the end product in Koru. Accordingly, in our opinion, such cutting and repackaging substantially alters the character of these goods, creating a new and different product with “a new name, character or use.”

In this case, the imported whole, headed and gutted are substantially transformed as a result of the U.S. processing, and therefore the U.S. processor is the ultimate purchaser of the imported whole fish and under 19 CFR 134.35 only the containers which reach the ultimate purchaser are required to be marked with the foreign country of origin.

With regard to the marking of the frozen fillet pieces, produced in the U.S., as products of the U.S., it is within the scope of this agency’s authority only to rule that these fillets are not required to be marked as products of the foreign country from which they were imported. Moreover, the approval of marking, such as “Made in the U.S.A.” or “Product of the U.S.A.,” is in the jurisdiction of the Federal Trade Commission and not the Bureau of Customs and Border Security. In order to obtain approval for marking these fillet pieces as “Products of the U.S.A.,” we suggest that you contact the Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508.

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 Thomas P. Brady at 646-733-3030.


Robert B. Swierupski

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