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NY 851778


May 18, 1990

CLA-2-03:S:N:N1:229

CATEGORY: CLASSIFICATION

TARIFF NO.: 0304.20.6057

Mr. Ernest E. Wayland
V.P. Marketing
Meridian Products, Inc.
13217 Cambridge Street
P.O. Box 2843
Santa Fe Springs, CA 90670

RE: The tariff classification of frozen YELLOWFIN SOLE (Limanda aspera) FILLETS from Thailand.

Dear Mr. Wayland:

In your letter dated April 13, 1990, you requested a tariff classification ruling.

You state that Yellowfin Sole (Limanda aspera) will be caught in the Bering Sea in Alaskan waters and that, after taking, these fish will be headed and gutted and frozen in bulk. Your supplier, a Thai company, will buy the fish in this condition and, after the fish have been transported to Thailand, will further process the fish by skinning, boning, and filleting. The finished fillets will then be refrozen into blocks or, alternatively, be Individually Quick Frozen (I.Q.F.) in polybags for marketing in the United States.

The applicable subheading for these frozen YELLOWFIN SOLE (Limanda aspera) FILLETS will be 0304.20.6057, Harmonized Tariff Schedule of the United States (HTS), which provides for Frozen fillets and other fish meat (whether or not minced), fresh, chilled or frozen:...Other Frozen fillets:...Flatfish:...Sole. The rate of duty will be Free.

In addition to your request for a classification ruling, you ask whether these fillets may be marked with the legend "Product of Thailand" to satisfy marking country of origin requirements set forth in Part 134 of the Customs Regulations, implementing Section 304, Tariff Act of 1930, as amended, (19 U.S.C. 1304). Further, you wish to know whether the product itself may be described on the label as "Alaskan Yellowfin Sole Fillets."

With regard to your first question, the processing performed in Thailand (namely, thawing, skinning, boning, filleting, and refreezing and packing for export) appears to be substantially the same as that processing undergone by certain Hoki fish fillets which were ruled upon by the U.S. Court of International Trade in Koru North America, Plaintiff v. United States, Defendant, Slip Op. 88-162 (decided November 23, 1988). These Hoki fillets had been imported into Korea as frozen fish, beheaded, de-tailed, and eviscerated and there thawed, skinned, boned, trimmed, glazed, refrozen and packaged for export to the United States. The Court held that these fillets had been substantially transformed by this processing, so as to be considered "Products of Korea." Accordingly, in the instant case, we believe that the marking of these Yellowfin Sole Fillets as "Products of Thailand" would satisfy country of origin marking requirements under Section 304 of the Tariff Act, as cited above.

With regard to the label description of the product as "Alaskan Yellowfin Sole Fillets," we would note, after consulting various reference sources, that the common name of Limanda aspera is YELLOWFIN SOLE (not "Alaskan" YELLOWFIN SOLE) and that there appears to be no evidence of "Alaskan" or "American" origin,-- such as, for example, that these fish were taken by American flag vessels operating in an American Fishery or that they were even taken within the three mile territorial limits of the United States. The significance of the taking site and flag of the taking vessel are, ordinarily, significant criteria in determining the origin of fish products. In the instant case, however, these factors are superseded by the fact that the imported product has been substantially transformed into a Thai product. Accordingly, we believe that the use of the adjective "Alaskan" in describing this product may be confusing to the American consumer, leading him to the assumption that these fillets are, in fact, an "Alaskan," or an "American," product. As such, these fillets will be subject to the special marking provisions contained in Sections 134.46 and 136.36 of the Customs Regulations.

Section 134.46 of the Customs Regulations (C.R.), addresses the marking of products when the name of a country or locality other than the country of origin appears on the product, contains special marking requirements which are applicable in those cases, and reads as follows:

In any case in which the word "U.S," or "American," the letters "U.S.A.," any variation of such letters, or the name of any city or locality in the U.S., or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appear on an imported article or its con- tainer, there shall appear, legibly and permanently, in close proxi- mity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning.

Finally, Section 134.36(b) of the Customs Regulations precludes any exception from marking for articles or containers bearing misleading marking, as described in sections 134.46 or 134.47, C.R.:

(b) Articles or containers bearing misleading markings. An exception from marking shall not apply to any article or retail container bearing any words, letters, names, or symbols described in Section 134.46 or 134.47 which imply that an article was made or produced in a country other than the actual country or origin.

Importations of YELLOWFIN SOLE FILLETS are also subject to regulations administered by the U.S. Food and Drug Administration. "The Fish List", an "FDA Guide to Acceptable Market Names for Food Fish Sold in Interstate Commerce 1988", published by the Government Printing Office (GPO Stock No. 017- 012-00341-9), lists the common name of Limanda aspera as YELLOWFIN SOLE. Information on FDA labeling requirements and other applicable regulations administered by that Agency may be addressed to the following location:

U.S. Food and Drug Administration
Division of Regulatory Guidance
HFF 314, 200 C Street, S.W.
Washington, D.C. 20204

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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