H311331

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H311331 December 16, 2020 OT:RR:CTF:FTM H311331 JER CATEGORY: Origin Center Director CEE-Agriculture & Prepared Products U.S. Customs and Border Protection 301 E Ocean Blvd, Shoreline Square Long Beach, CA 90802 ATTN: Bryan M. London, Import Specialist RE: Application for Further Review of Protest No. 4601-20-110839; Country of Origin of frozen roasted (broiled) eel Dear Center Director: This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4601-20-110839, timely filed on or about March 17, 2020, by the law firm of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of their client, American Eel Depot, Corp. (“Protestant”), concerning the country of origin of imported frozen roasted (broiled) eel. Protest No. 4601-20-110839 shall act as the lead protest for Protest Numbers: 4601-20-111432, 4601-20-113733, and 4601-20-117309. FACTS: This matter involves multiple entries of frozen roasted (broiled) eel made between October 25, 2018 and November 5, 2018. The products at issue were initially entered as products of the People’s Republic of China (“China”), subject to Section 301 duties, which are applicable to certain products of Chinese origin. Protestant seeks to establish that the imported frozen roasted (broiled) eel is of U.S. origin or of European origin and asserts –in part that the imported eel is not subject to Section 301 duties. The frozen roasted (broiled) eel in question is produced with either of two species of eels: Anguilla rostrata (common name American Eel) which is caught in the United States and Anguilla anguilla (common name European Eel) which is caught in various unspecified European countries. Both species are commonly referred to as “glass eels” in their juvenile state. The scenario outlined is one whereby juvenile glass eels are legally harvested in the United States or various European countries then exported (alive) to China where they are placed into growing ponds until maturity. Upon attaining commercial suitable sizes, the eels are then prepared and processed for export. During the processing in China, the eels are beheaded, deboned, eviscerated, fins removed, trimmed, washed, steamed, roasted (with or without sauce), graded, packed, frozen and exported to the United States. Specifically, the Protestant outlines the processing of the glass eel as follows: The fresh eels are cut open to remove the eels’ bones, head and guts. Next, the eels are trimmed to remove the dorsal fins. The eels are not, however, skinned. The eels are then washed and placed on the roasting line. The eels, with their skin and flesh are then roasted via carbon fire. The skin (or backs) of the eel are laid flat on the roasting line with flesh side facing upward (to remove excess fat). After the eel meat is roasted – it is then steam cooked to make the meat softer and more sterilized. The eel is then roasted with sauce or in some cases it is roasted without sauce. The cooked eel is thereafter inspected, graded and then packaged and boxed. The eel is then frozen in preparation for shipping and export. Protestant argues that baby eels of U.S. or of European origin are not substantially transformed by the various processes that occur in China. In particular, Protestant contends that the eel does not lose its essential shape as a whole fish and is therefore not transformed into a new product with a new shape, character or commercial identity. In reaching its conclusion, Protestant states that because the subject eels are not filleted that they retain the basic shape of an eel. As such, Protestant concludes that the frozen roasted (broiled) eel is a product of the United States if produced from eels of the U.S. origin and if produced from eels that originated in a specified European country, then the frozen roasted eel product must be marked with the country of origin of the specific source country of the eels. On October, 14, 2020, CBP held a telephone conference with Protestant’s counsel, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, to discuss the tariff classification of the subject frozen eel. On October, 14, 2020, counsel for Protestant provided a supplemental submission which included additional information regarding the subject frozen eel. ISSUE: What is the country of origin of imported frozen roasted (broiled) eel? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on or about March 17, 2020, within 180 days of liquidation. 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 4601-20-110839 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304), provides that, unless excepted, every article of foreign origin imported into the United States 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 United States the English name of the country of origin of the article. By enacting 19 U.S.C. § 1304, Congress intended to ensure “that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940). Part 134, Customs Regulations (19 C.F.R. Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. § 1304. Section 134.1(b), Customs Regulations (19 C.F.R. § 134.1(b)), defines “country of origin” as the country of manufacture, production or growth of any article of foreign origin entering the United States. 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 the meaning of the marking laws and regulations. A substantial transformation occurs when an article emerges from a process with a new name, character, and use different from that possessed by the article prior to processing. A substantial transformation will not result from a minor manufacturing or combining process that leaves the identity of the article intact. See United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940); and Texas Instruments v. United States, 681 F.2d 778, 782 (1982). With regard to the country of origin of fish and seafood products, the Court of International Trade’s decision in Koru North America v. United States, 701 F.Supp. 229, 235 (C.I.T. 1988) is instructive. It is well settled that changes to the fundamental nature and character of imported fish, where the fish has been transformed, both in name and character, that a new article of commerce has been created. Koru North America v. United States, 701 F.Supp. 229, 235 (C.I.T. 1988). In Koru North America, the Court considered whether the processing of be-headed and gutted fish (in South Korea) by thawing, skinning, de-boning, trimming, freezing and packaging – constituted a substantial transformation. The Court concluded that the fish that had been filleted no longer possessed the essential shape of a fish. As a fillet, the Court noted, that filleted fish had become its own discrete commercial good distinct from the whole fish when it first arrived in South Korea. CBP has previously addressed the country of origin of imported 

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on or about March 17, 2020, within 180 days of liquidation. 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 4601-20-110839 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304), provides that, unless excepted, every article of foreign origin imported into the United States 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 United States the English name of the country of origin of the article. By enacting 19 U.S.C. § 1304, Congress intended to ensure “that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940). Part 134, Customs Regulations (19 C.F.R. Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. § 1304. Section 134.1(b), Customs Regulations (19 C.F.R. § 134.1(b)), defines “country of origin” as the country of manufacture, production or growth of any article of foreign origin entering the United States. 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 the