CLA-2:CO:R:C:G 086151 SER
0705.29.00, 0709.40.20
Mr. David M. Blake
C. J. Tower Inc.
128 Dearborn Street
Buffalo, NY 14207-3198
RE: Salads
Dear Mr. Blake:
This is in reference to your request, on behalf of Fresh Mix
Limited, for the tariff classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) of fresh
cut produce salads from Canada. No samples were submitted.
FACTS:
The merchandise at issue, according to the information
submitted, consists of four different salads. Mixed Salad I
consists of 25 percent each of cut romaine, cut endive and cut
escarole, 15 percent shredded green cabbage, and 10 percent
shredded carrots. Mixed Salad II consists of 40 percent each of
cut romaine and cut endive, and 20 percent cut radicchio. The
Mixed Vegetable Salad contains 25 percent each of cut savoy
cabbage, cut napa, and sliced carrots, 15 percent sliced celery,
and 10 percent cut cauliflower. The Coleslaw is comprised of 70
percent shredded green cabbage, and 10 percent each of green,
red, and yellow peppers. The salads apparently contain no
dressings, seasonings, preservatives or other additives, and will
be packed in units containing 200 grams, 300 grams, 8 ounces and
12 ounces.
ISSUE:
What is the proper classification of the merchandise at
issue under the HTSUSA?
-2-
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI), taken in order. When
goods are prima facie classifiable under two or more headings,
GRI 3 is applicable. Though samples of the goods were not
provided, based on the ingredient breakdown, the Coleslaw salad
would be classifiable according to GRI 3(b), which provides:
Mixtures, [and] composite goods consisting of different
materials or made up of different components, . . .
shall be classified as if they consisted of the
material or component which gives them their essential
character.
"In general, 'essential character' has been construed to
mean the attribute which strongly marks or serves to distinguish
what an article is; that which is indispensable to the structure,
core or condition of the article." United China & Glass Co. v.
United States, 61 Cust. Ct. 386, C.D. 3637, 293 F. Supp. 734
(1968). This case stated this standard under the Tariff
Schedules of the United States (TSUS), but this principle is
continued under the HTSUSA. In addition, the Explanatory Notes
provide further factors which help determine the essential
character of goods. Factors such as bulk, quantity, weight or
value, or by the role of a constituent material in relation to
the use of the goods are to be utilized, though the importance of
certain factors will vary between different kinds of goods.
The ingredient which most imparts the essential character
of the Coleslaw would be the shredded cabbage. Therefore, this
particular salad would be properly classified in subheading
0704.90.20, HTSUSA, which provides for cabbage.
According to the Explanatory Notes, GRI 3(c) provides that
when goods cannot be classified by reference to GRI 3(b), they
are to be classified in the heading which occurs last in
numerical order among those which equally merit consideration in
determining their classification. The essential character
cannot be determined for the remaining merchandise at issue,
thus, classification must be determined by GRI 3(c).
Mixed Salad I consists of cabbage (0704.90.20, HTSUSA),
romaine lettuce (0705.19.20 or 0705.19.40, HTSUSA), endive,
escarole (0705.29.00, HTSUSA) and carrots (0706.10.05, HTSUSA).
Application of GRI 3(c) would determine that the proper
classification would be under subheading 0706.10.05, HTSUSA.
-3-
Mixed Salad II consists of romaine (0705.19.20 or
0705.19.40, HTSUSA), endive and radicchio (0705.29.00, HTSUSA).
It is properly classified under subheading 0705.29.00 HTSUSA.
The Mixed Vegetable Salad contains cauliflower (0704.10.20
or 0704.10.60, HTSUSA), savoy cabbage (0704.90.20, HTSUSA), napa
(0704.90.4040, HTSUSA), carrots (0706.10.05, HTSUSA), and celery
(0709.40.20, HTSUSA). The Mixed Vegetable Salad would be properly
classified in subheading 0709.40.20, HTSUSA, which provides for
Celery.
HOLDING:
The merchandise at issue, salads from Canada, are properly
classified according to GRI 3(b) and (c) in Chapter 7, HTSUSA.
If the merchandise meets the requirements of the U.S./Canada
Free Trade Agreement, primarily if it is considered to be "goods
originating in the territory of Canada", beneficial duty rates
can be received.
The Coleslaw is properly classified in subheading
0704.90.20, HTSUSA, which provides for cabbage. The rate of duty
under the special duty rate column is .9 cent per kilogram.
Mixed Salad I is properly classified in subheading
0706.10.05, HTSUSA, which provides for Carrots: reduced in size.
The rate of duty is 14 percent ad valorem under the special duty
rate column.
Mixed Salad II is properly classified in subheading
0705.29.00, HTSUSA, which provides for Chicory: other. The rate
of duty is .2 cent per kilogram under the special duty column.
The Mixed Vegetable Salad is classified in subheading
0709.40.20, HTSUSA, which provides for Celery. The rate of duty
is 14 percent ad valorem under the special duty rate column.
Sincerely,
John Durant, Director
Commercial Rulings Division