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NY L88447




December 5, 2005

CLA-2-03:RR:NC:2:231 L88447

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 0302.12.0013; 0304.10.4093

Ms. Tammy Blazys
Marine Harvest
350 Long Beach Blvd.
Stratford, CT 06615

RE: The tariff classification, country of origin marking and status under the North American Free Trade Agreement (NAFTA), of certain Atlantic Salmon from Canada; Article 509

Dear Ms. Blazys:

In your letter dated October 26, 2005, you requested a ruling on the status of certain Atlantic salmon from Canada under the NAFTA.

Marine Harvest is a worldwide aquaculture company that processes farm-raised Atlantic salmon in Canada for export to the United States. The company is requesting a binding classification ruling on these fish and a binding ruling on the country of origin marking requirements, after processing in Canada. These salmon will be raised and processed in the U.S. and Canada, as described in the following paragraphs.

1.
Under the first scenario, the salmon will be hatched in Maine, raised in ocean pens through a 2 year grow out phase and then harvested by vessels registered in Canada. The harvested fish will be packed in ice, then exported to Canada as fresh or chilled, whole salmon. In Canada, the fish will be processed in either of two ways:

The whole fish will be gutted and cleaned, then packed in ice in Styrofoam containers and exported to the United States for marketing at wholesale or as an inter-company transfer, or will be marketed at wholesale in Canada.

The headed and gutted fish will be further processed into fillets. The whole fish will be headed and scaled (but not skinned), the pin bones removed and the fish cut into fillets. These fillets will be packed in ice in Styrofoam containers, then exported to the United States for marketing at wholesale or as an inter-company transfer, or will be marketed at wholesale in Canada.

2. The second scenario is identical to the first, except that the salmon will be hatched in New Brunswick, Canada, and then exported to the United States where they will be grown out for two years in ocean pens and harvested by vessels registered in Canada. The harvested fish will be packed in ice and exported to Canada as chilled salmon. In Canada the fish will be further processed into chilled whole gutted fish and chilled fish fillets, as described above.

The applicable tariff provision for the fresh or chilled, gutted and cleaned, whole Atlantic salmon will be 0302.12.0013, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0304, Salmonidae, excluding livers and roes, ...Atlantic salmon (Salmo salar)...Atlantic...farmed. The rate of duty will be free.

The applicable tariff provision for the fresh or chilled, skin-on Atlantic salmon fillets will be 0304.10.4093, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen: fresh or chilled, other, other, salmon, Atlantic (Salmo salar), farmed. The rate of duty will be free.

In response to your request for a ruling on the country of origin marking requirements for the processed fresh or chilled salmon that is exported back to the United States, it is noted that 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.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.1(b) of the regulations, defines "country of origin" as
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. 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 this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).

Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

You state that the imported salmon are processed in a NAFTA country, Canada, prior to being imported into the U.S. Since Canada is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported salmon is a "good of a NAFTA country", and thus subject to the NAFTA marking requirements.

Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.

Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported fresh or chilled, gutted and cleaned, whole salmon is a good of the United States for marking purposes. As these goods would be considered to be of American origin, it is noted that the Federal Trade Commission (rather than Customs and Border Protection) regulates the marking of American goods.

Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported fresh or chilled, salmon fillets is a good of Canada for marking purposes.

Finally, we would agree with your position that the fresh or chilled, whole salmon, exported from the United States to Canada for further processing, is a product of the United States.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

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.

Sincerely,

Robert B. Swierupski
Director,

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