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HQ 952685


January 11, 1993

CLA-2: CO:R:C:F 952685 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 1605.10.4020; 1605.10.2040

Mr. Tom Vasile
Bay Trading Co., Inc.
The Fairty Group
Cape Ann Industrial Park
P.O. Box 141
Gloucester, MA 01930

RE: Crabmeat and crab claws; Heading 1605, HTSUSA, crustaceans, molluscs and other aquatic invertebrates, prepared or preserved; Not 0306, crustaceans, in shell, cooked by steaming or by boiling in water; Applicability of duty exemption under subheadings 9801.00.10 and 9802.00.50; HRL's 051909 and 072991

Dear Mr. Vasile:

This is in response to your letter of August 21, 1992, requesting the proper classification of frozen red crabmeat and frozen red crab claws under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). This ruling also addresses the issues raised in your inquiry concerning the applicability of subheadings 9801.00.10 and 9802.00.50, HTSUSA. Your question regarding the proper marking of your product has been forwarded to the Value and Marking Branch, for their direct reply.

FACTS:

Red crabs (Geryon quinquedens), caught in U.S. waters by U.S. fishing boats, are taken to the U.S. Fishery Conservation Zone, outside the three mile U.S. territorial limit. After harvesting, the crabs are gutted (cleaned) and cut into sections (i.e., into claws with arms and into bodies). At the U.S. plant, they are cooked, graded, frozen and packed for shipment to China for further processing.

After shipment to China, the crabs are thawed and the meat is extracted from the body. The extracted body meat is frozen into blocks packed in coated boxes with a polyethylene sheet and cover, in either 6 five pound blocks or 10 two pound blocks per master carton, for re-export to the U.S. These boxes are not airtight containers.

In processing the crab bodies, the claws, with arms attached, are removed from the bodies before they are processed. The detached claws are then processed by cutting them into cocktail claws. The cap, or upper portion, of the claw shell is cut away, exposing the crab meat of the claw. These claws are individually frozen, then packed in polyethylene bags, 2 to 3 mils in thickness, in master cartons ranging from 1 to 20 pounds, for re- export. The smaller size bags of 1 or 2 pounds are heat sealed. The larger bags are unsealed.

ISSUE:

Whether the crabmeat and crab claws are classifiable in heading 0306 as crustaceans, in shell, cooked by steaming or by boiling in water, or in heading 1605 as crustaceans, molluscs and other aquatic invertebrates, prepared or preserved; and whether they will be eligible for the duty exemption available under either subheading 9801.00.10 or 9802.00.50.

LAW AND ANALYSIS:

Tariff Classification

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 0306 provides, inter alia, for crustaceans, in shell, cooked by steaming or by boiling in water, whether or not chilled or frozen, while heading 1605 provides, inter alia, for crustaceans, molluscs and other aquatic invertebrates, prepared or preserved. Because the crabmeat and crab claws are cooked, but are not in their shell, they are not classifiable in 0306, but rather in 1605. We note that it has been Customs position that crab claws are classifiable as "crabmeat." See Headquarters Ruling Letter (HRL) 072991, issued April 17, 1984.

Applicability of Subheadings 9801.00.10 and 9802.00.50

Chapter 98, Subchapter II, HTSUSA, incorporates provisions that apply to articles which are exported and then returned to the U.S. Subheading 9801.00.10 provides for duty-free entry of U.S. products that are exported and returned without having been advanced in value or improved in condition by a process of manufacture or any other means while abroad. Articles satisfying the above conditions of the statute will be afforded duty-free treatment, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met. Although some change in the condition of the product while it is abroad is permissible, operations which either advance the value or improve the condition of the exported product render it ineligible for duty-free entry upon return to the U.S. See Border Brokerage Company Inc. v. United States, 65 Cust. Ct. 50, C.D. 4052, 314 F. Supp. 788 (1970), appeal dismissed, 58 CCPA 165 (1970).

In this case, both the picking of the crabmeat, from the crabs' bodies, and the cutting of the shell cap from the crab claws to produce traditional cocktail claws, improve the condition of the product. We note that these processes make the crab more commercially marketable as well as easier to eat. Therefore, the crabmeat and crab claws entering the U.S. are not eligible for the duty exemption available under subheading 9801.00.10.

Subheading 9802.00.50 provides for the assessment of duty on the value of repairs or alterations performed on articles returned to the U.S. after having been exported for that purpose. However, the application of this tariff provision is precluded in circumstances where the operations performed abroad destroy the identity of the articles or create new or commercially different articles. See A.F. Burstrom v. United States, 44 CCPA 27, C.A.D. 631 (1956), aff'd, C.D. 1752, 36 Cust. Ct. 46 (1956); and Guardian Industries Corporation v. United States, 3 CIT 9 (1982), Slip Op. 82-4 (Jan. 5, 1982). Application of subheading 9802.00.50 is also precluded where the exported articles are incomplete for their intended use and the foreign processing operation is a necessary step in the preparation or manufacture of finished articles. See Dolliff & Company, Inc. v. United States, 81 Cust. Ct. 1, C.D. 4755, 455 F. Supp. 618 (1978), aff'd, 66 CCPA 77, C.A.D. 1225, 599 F. 2d 1015 (1979).

In HRL 051909, issued June 29, 1977, it was determined that snow crab clusters, or crabs in shells, which were exported abroad for extraction of the crabmeat from the shell, did not qualify for a partial duty exemption under item 806.20, Tariff Schedules of the United States (TSUS), (the precursor provision to subheading 9802.00.50). In that ruling Customs stated:

[i]n the circumstances described, the operations performed...involving a change of merchandise from one form to another are beyond the meaning of item 806.20, TSUS. The crab-in-shell product that goes out is commercially different from the extracted crab meat product that returns.

Further, the foreign processing of the crab product described is neither a repair nor alteration of an exported product but a process that results in a new and different product, beyond the scope of this tariff provision.

Because this is also the case regarding the processes undergone by the subject crabmeat and crab claws, the products are not eligible for the duty exemption available under subheading 9802.00.50.

HOLDING:

The appropriate subheading for the frozen crabmeat or crab claws, not in airtight containers, is 1605.10.4020, HTSUSA, providing for, "Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved: Crab: Other: Crabmeat: Other, Frozen: Other." The general column one rate of duty is 5 percent ad valorem.

The appropriate subheading for the frozen crabmeat or crab claws, in airtight containers, is 1605.10.2040, HTSUSA, providing for, "Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved: Crab: Other: Crabmeat: In airtight containers, Other." The general column one rate of duty is 11 percent ad valorem.

Based on the information provided, it is our opinion that the crabmeat and crab claws will be improved in condition abroad, and, therefore, the duty exemption available under 9801.00.10, HTSUSA, is precluded. Additionally, the foreign operations, whereby the crabmeat is picked and the crab claws are capped, creates a new and commercially different article, excluding the products from the partial duty exemption available under subheading 9802.00.50, HTSUSA.

Sincerely,

John Durant, Director

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