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NY R04074

June 13, 2006

MAR-2 RR:NC:2:231 R04074


Mr. James Brian Cunningham
Pride of the South Catfish
1075 Hwy 388
Brooksville, MS 39739


Dear Mr. Cunningham:

This is in response to your letter dated June 1, 2006 requesting a ruling on whether imported frozen catfish fillets are required to be marked with the country of origin if they are later to be processed in the U.S. by a U.S. manufacturer. A marked sample was not submitted with your letter for review.

The facts presented in your letter are the following:

1. Catfish fingerlings of U.S. origin will be purchased by Chinese growers.

2. The fingerlings will be brought to China and raised there in reservoirs, fed with the same formula feed used by U.S. fish farmers.

3. When these catfish reach marketable size, they will be harvested for processing in China.

4. They will be harvested, gutted, skinned, filleted and frozen, and then packaged into cartons holding 15 pounds of fillets for export to the U.S.

5. After importation into the U.S., the frozen fillets will first be slacked out, after which they may be cut into strips, portions or left as a fillet. They will then be seasoned, battered, breaded and, in most cases, partially fried or fully cooked.

In their condition, as exported from China, these catfish fillets are a product of China.

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 case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported catfish fillets are substantially transformed as a result of the breading or battering and seasoning that occurs in the U.S. after importation, and therefore the U.S. manufacturer is the ultimate purchaser of the imported frozen fillets and under 19 CFR 134.35 only the 15 pound net, weight, cartons,--i.e., the containers which reach the ultimate purchaser,-- are required to be marked with the country of origin "Product of China".

You state in your letter that, after processing the fillets in the U.S., you wish to label the breaded product as “Product of the USA,” and as “Farm Raised Catfish.” We would note, first, that the statutory country of origin marking provisions administered by the Bureau of Customs and Border Protection (CBP) in 19 U.S.C. 1304 apply to the marking of goods that can be identified as actual “products of” a foreign country or countries. In the situation described in your ruling request, the further processing of these catfish fillets results in a product that can no longer be labeled as “Product of China.” The question you raise about whether this breaded catfish can legally be labeled “Product of the USA” falls within marking regulations administered by the Federal Trade Commission (FTC), and inquiries regarding the appropriateness of such marking must be referred to that agency. Their address, provided on their website, www.ftc.gov, is

Federal Trade Commission
600 Pennsylvania Avenue, N.W.,
Washington, D.C. 20580

With regard to the additional marking to indicate that these catfish were “Farm Raised,” a requirement for such marking will occur, should these catfish be subject to the Mandatory Country of Origin Labeling (COOL) requirements in Part 60 in Title 7, Code of Federal Regulations (7 C.F.R. 60, Country of Origin labeling for fish and shellfish). As these labeling requirements are administered by the U.S. Department of Agriculture, we suggest that you contact that agency for advice on your proposed marking. You may submit your inquiry by email to the following address

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 Thomas P. Brady at 646-733-3030.


Robert B. Swierupski

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