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COOL - Substantial Transformation of fish (USA)

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Marshenko

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Posted 30 January 2024 - 04:55 PM

Under the USDA mandatory country of origin labeling regulations for seafood, products that are imported but “substantially transformed” in the United States must be labeled as “From (country of import), Processed in U.S.”

 

Can anyone point to resources that might include a less-vague guidance to this rule than:

"Appendix A

 

Under the USDA mandatory country of origin labeling regulations for seafood, products that are imported but “substantially transformed” in the United States must be labeled as “From (country of import), Processed in U.S.” Covered commodities that are “substantially transformed” overseas are labeled as originating from the country where the substantial transformation occurred.

 

What constitutes a substantial transformation?

 

A substantial transformation occurs when an item is transformed into a “new and different article of commerce” having a “new name, character or use different from that possessed by the article prior to processing,” U.S. v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940).

 

U.S. Customs and Border Protection has made rulings as to what constitutes “substantial transformation” for seafood products.

 

In ruling HQ 563033 (July 6, 2004), Customs ruled that for shrimp, the heading, shelling, deveining, cooking, freezing or some combination of these processes did not constitute a “substantial transformation” because these processes “merely rendered the product more suitable for consumption.” Customs stated that the character of the shrimp (its size and quality) was not changed by the processing.

 

In contrast the U.S. Court of International Trade ruled in Koru North America v. U.S., that the processing of headed and gutted fish by thawing, skinning, boning, trimming, freezing and packaging 24 constituted a substantial transformation. 701 F. Supp. 229 (CIT 1988). The Court concluded that the processing into “quick frozen” fillets substantially transformed the headed fish because there was a change in name and character of the product. The Court noted that while the fish arrive at the plant with the look of a whole fish, when they leave, they no longer possess the essential shape of a fish. The fillets also have a different tariff classification"



G M

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Posted 30 January 2024 - 05:24 PM

Probably not.  Find out which office your labeling approval will go through and ask them if they like heads or tails.



Marshenko

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Posted 30 January 2024 - 06:13 PM

That's the thing though.. fish is regulated by FDA (aside from this peculiarity in labeling), so no label submission to FSIS is needed.  AND... "substantially transformed" is actually controlled by US Customs, which hasn't helped other than the occasional advisory opinion.

 

Frustrating.  

 

 

Probably not.  Find out which office your labeling approval will go through and ask them if they like heads or tails.


Edited by Marshenko, 30 January 2024 - 06:14 PM.


Marshenko

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Posted 05 February 2024 - 01:35 PM

Any other thoughts on this?



TylerJones

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Posted 05 February 2024 - 01:48 PM

I believe catfish is the only fish under USDA regualtions. They would have this information.


If you don't like change, you're going to like becoming irrelevant less. 


kfromNE

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Posted 05 February 2024 - 01:59 PM

I would contact someone at Oregon State or Cornell if you can't get any information from the FDA/USDA. 

 

https://seafood.oregonstate.edu/ 



Marshenko

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Posted 05 February 2024 - 02:29 PM

I believe catfish is the only fish under USDA regualtions. They would have this information.

 

That's another fun part of the regs, yeah.  Catfish is a USDA item, it's true, while the remainder of seafood falls under the FDA under 21 CFR 123; but the USDA COOL regulations affect all seafood labeling.



Marshenko

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Posted 05 February 2024 - 02:31 PM

I would contact someone at Oregon State or Cornell if you can't get any information from the FDA/USDA. 

 

https://seafood.oregonstate.edu/ 

 

That's a fine, fine idea.



kfromNE

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Posted 05 February 2024 - 03:57 PM

That's a fine, fine idea.

 

Ha. When dealing with the crazy regulations and the complexity of them. I've learned you go to the them when the USDA/FDA isn't helping. Having an email from an expert from a university with advice - rarely do I receive much rebuttal from inspectors. 


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Marshenko

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Posted 07 March 2024 - 02:02 PM

Non-Update Update:  after talking with some helpful folk at NOAA, I've submitted a ruling request to US Customs and Border Protection.

I should have an answer sometime reasonably soon.



Brothbro

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Posted 07 March 2024 - 05:47 PM

What a slippery situation. I hope you make heads or tails of it soon! Puns aside it sounds like you're doing everything you could in your situation, if any of these agencies question you about your labels I would think they'd respect the path you've taken to get a definitive answer.



Marshenko

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Posted 29 March 2024 - 09:52 PM

Dept of Commerce declined to rule.  Here's some fun text:

 

"We are returning your request for a ruling regarding fish, along with any related samples, exhibits, etc. This office is unable to issue a ruling for the reasons that follow.

 

Section 177.7(a) of Title 19 of The Code of Federal Regulations states, “…no ruling letter will be issued with regard to transactions or questions which are essentially hypothetical in nature….” Your request outlines hypothetical importation scenarios. Ruling requests must concern actual prospective transactions and contain a complete statement of all relevant facts relating to those transactions."

 

"Note that if you wish to mark the packaging that contains the fish to indicate it is “Processed in the USA” or similar indications of United States origin, then the marking would need to comply with Federal Trade Commission (FTC) requirements."

 

I had described numerous activities we do actually undertake with imported product.

I also provided a flow chart of our activities.

 

I don't even know now  :silly:





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