HQ H260568
CLA-2 OT:RR:CTF:TCM H260568 TSM
Mr. Terence Harman
Livingston International Inc.
5090 Explorer Drive, Suite 400
Mississauga, Ontario L4W44T9
RE: Reconsideration of NY N257842; Classification, country of origin, and status under the North American Free Trade Agreement (NAFTA) of Real Coconut Whipped Cream from Canada.
Dear Mr. Harman:
This is in response to your letter dated November 14, 2014, requesting the reconsideration of New York Ruling Letter (NY) N257842, dated October 24, 2014. In that ruling, CBP found that the coconut cream imported by your client, Livingston International Inc., was classified under subheading 2106.90.9980, Harmonized Tariff Schedule of the United States (“HTSUS”). Moreover, CBP also found that the country of origin of the Real Coconut Whipped Cream for marking purposes is Indonesia. For the reasons that follow, we affirm NY N257842.
In your request for reconsideration, you claim that the coconut cream ingredient used in the Real Coconut Whipped Cream imported by your client should be classified under subheading 2008.99, HTSUS, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Other.” You have provided a copy of a Tariff Classification Advanced Ruling dated November 5, 2014, issued by the Canada Border Services Agency (CBSA) and classifying the coconut cream under Canadian subheading 2008.19.90.90 on the basis that the coconut cream “retains the essential character of coconut and meets the terms of Heading 20.08.”
Heading 2008, HTSUS, covers “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.” The ENs to heading 2008, HTSUS, provide, in pertinent part, that “This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.”
Ruling letter NY N257842 states, in part:
Real Coconut Whipped Cream, Spec 1415 is said to be a refrigerated, white-colored, smooth and creamy product packed in pressurized cans. The product is composed of approximately 48-56 percent coconut cream (coconut extract, water, and xanthan gum), 16-20 percent water, 12-14 percent high fructose corn syrup, 12-14 percent glucose syrup, 4 percent nitrous oxide, and less than one percent each of carrageenan gum, mono- and diglycerides.
The coconut cream is a product of Indonesia. In Indonesia, the coconut cream is produced by pressing raw coconut meat, centrifuging the resulting liquid to separate the cream from the oil, adding water and xanthan gum, and undergoing UHT (Ultra High Temperature or Ultra Heating Treatment) process. The water, high fructose corn syrup, and glucose syrup are products of Canada. The nitrous oxide, mono- and di-glycerides are products of the United States. The carrageenan gum is produced in Denmark. In Canada, all ingredients are mixed to make the Real Coconut Whipped Cream.
The coconut cream is pressed from coconut meat and then separated from the coconut oil. It does not contain coconut meat itself and is not considered a coconut preparation of heading 2008, HTSUS. When mixed with water and xanthan gum, and upon undergoing the UHT (Ultra-High Temperature or Ultra Heating Treatment) process, the coconut cream product becomes a food preparation of heading 2106, HTSUS, which provides for “Food preparations not elsewhere specified or included.” At the six digit level, it is classified under subheading 2106.90, HTSUS, as an “Other” food preparation. CBP consistently classifies similar products in subheading 2106.90, HTSUS. See, NY G88972, dated April 12, 2001 (coconut milk); and NY B82755, dated March 31, 1997 (coconut milk). Although you cited a CBSA ruling to support your position that the subject coconut cream is classified in heading 2008, HTSUS, we note that CBP considers rulings from other countries that classify identical or substantially similar merchandise as instructive, but not determinative, because they do not constitute an official interpretation of the Harmonized Tariff Schedule.” See HQ H055376, dated May 8, 2009.
The classification of the finished product, “Real Coconut Whipped Cream, Spec 1415” is not in dispute. The Real Coconut Whipped Cream, Spec 1415 is classified in heading 2106, HTSUS, and specifically in subheading 2106.90.9980, HTSUS, as “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other cream or milk substitutes.”
The Real Coconut Whipped Cream does not qualify for preferential treatment under the NAFTA, because it fails to meet the requirements of General Note 12(b), HTSUS. Specifically, it is not wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States, as provided under General Note 12(b)(i), HTSUS. Pursuant to General Note 12(b)(ii)(A), HTSUS, we find that the Indonesia-origin coconut cream ingredient does not undergo a change in tariff classification described in subdivision (t)/21.14 – A change to heading 2106 from any other chapter.
In applying the “NAFTA Marking Rules” set forth in part 102 of the Customs Regulations (19 C.F.R. 102), we find that the country of origin of the Real Coconut Whipped Cream is Indonesia. The imported product is neither wholly obtained or produced in a single country as is provided under section 102.11(a)(1), nor is the finished product produced exclusively from domestic materials (i.e. Canada) as provided under section 102.11(a)(2). Section 102.11(a)(3) also does not provide a country of origin determination because the Indonesia-origin coconut cream ingredient does not undergo an applicable tariff shift pursuant to 19 C.F.R. §102.11(a)(3) and 19 C.F.R. §102.20(d)/2106.90.
Since an analysis of section 102.11(a) does not yield a country of origin determination, the analysis turns to section 102.11(b), which focuses on an examination of the single material that imparts the essential character of the good to determine the country or countries of origin of the Real Coconut Whipped Cream. Section 102.18(b)(1) of the regulations provides that only materials (domestic and foreign) that do not undergo a tariff shift are to be taken into consideration in determining the essential character of a good. We find that the Indonesian coconut cream imparts the essential character of the finished blend. Therefore, the country of origin of the Real Coconut Whipped Cream for marking purposes would be Indonesia.
Therefore, we affirm NY N257842, dated October 24, 2014.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division