CLA-2-20:OT:RR:NC:2:228
Mr. R.I. Hasson
Corbett International
One Cross Island Plaza
Rosedale, NY 11422
RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA) of food products from Canada; Article 509
Dear Mr. Hasson:
In your letters April 7, 2011 and July 28, 2011, on behalf of Beechnut Nutrition Corp., you requested a ruling on the status of food products from Canada under the NAFTA.
Product information and ingredients breakdowns accompanied your April letter. Additional information was provided in your second letter. Eight baby food products, put up in airtight “cheerpack” pouches, were described in your submissions: “Pear Mango Squash,” “Pear Banana Raspberry,” “Apple Mango Carrot,” “Banana Apple Strawberry,” “Peach Apple Banana,” “Apple Peach Strawberry,” “Banana Pear Sweet Potatoes,” and “Apple Sweet Potato Pineapple”. “Pear Mango Squash” contains 30 percent mango puree, 25 percent pear puree concentrate, 25 percent water, 20 percent squash puree and a trace amount of lemon juice concentrate. “Pear Banana Raspberry” is composed of 40 percent water, 25 percent pear puree concentrate, 25 percent banana puree, 10 percent raspberry puree and a trace amount of lemon juice concentrate. “Apple Mango Carrot” consists of 40 percent mango puree, 25 percent apple puree concentrate, 20 percent carrot puree, 15 percent water and a trace amount of lemon juice concentrate. “Banana Apple Strawberry” contains 60 percent banana puree, 15 percent apple puree concentrate, 15 percent water, 10 percent strawberry puree and a trace amount of lemon juice concentrate. “Peach Apple Banana” is made from 30 percent peach puree concentrate, 30 percent water, 20 percent banana puree, 20 percent apple puree concentrate and a trace amount of lemon juice concentrate. “Apple Peach Strawberry” contains 35 percent water, 30 percent apple puree concentrate, 20 percent peach puree concentrate, 15 percent strawberry puree and a trace amount of lemon juice concentrate. “Banana Pear Sweet Potatoes” is composed of 30 percent banana puree, 25 percent pear puree concentrate, 25 percent water, 20 percent sweet potato puree and a trace amount of lemon juice concentrate. “Apple Sweet Potato Pineapple” contains 40 apple puree concentrate, 35 percent water, 20 percent sweet potato puree, 5 percent pineapple juice concentrate and a trace amount of lemon juice concentrate.
The apple puree concentrate, pear puree concentrate, peach puree concentrate, strawberry puree and raspberry puree may be a product of Chile or the United States. The banana puree may be a product of Ecuador, Costa Rica or Mexico. The mango puree may be a product of Columbia or Ecuador. The squash puree, sweet potato puree and carrot puree are products of the United States. The pineapple juice concentrate may be a product of Thailand or Ecuador. The lemon juice concentrate and water are products of Canada. The cheerpacks are from Italy. The purees and pineapple juice concentrate were imported into the United Stated with duty paid. The strawberry puree and raspberry puree were imported in pails in frozen condition. All other purees and the pineapple juice concentrate have been aseptically processed in their respective countries of origin, put up in drums, totes or pails. The imported ingredients and the USA origin purees are then exported from the U.S. to Canada. In Canada, all ingredients are blended, pasteurized, filled into cheerpacks (3.97 ounces, net weight), pasteurized again, cooled and packed for shipment to the United States.
In your April letter, you suggested the products may fall in subheadings 9802.00.50 or 9802.00.80, Harmonized Tariff Schedule of the United States (HTSUS), the provisions for articles returned to the United States after exportation for alterations and articles assembled abroad in whole or in part of fabricated components, respectively. Neither provision will apply. Blending several ingredients in specific proportions in order to make finished articles is neither an acceptable alteration under subheading 9802.00.50, HTSUS, nor an assembly operation under subheading 9802.00.80, HTSUS.
The applicable subheading for the “Banana Apple Strawberry” and “Apple Sweet Potato Pineapple”, will be 2008.92.1040, HTSUS, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved…other, including mixtures other than those of subheading 2008.19…mixtures…in airtight containers and not containing apricots, citrus fruits, peaches or pears…other. The rate of duty will be 5.6 percent ad valorem.
The applicable subheading for the “Pear Banana Raspberry,” “Peach Apple Banana,” “Apple Peach Strawberry,” and “Banana Pear Sweet Potatoes”, will be 2008.92.9094, HTSUS, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved…other, including mixtures other than those of subheading 2008.19…mixtures…other…other…other. The rate of duty will be 14.9 percent ad valorem.
The applicable subheading for the “Pear Mango Squash” and “Apple Mango Carrot” will be 2104.20.0000, HTSUS, which provides for homogenized composite food preparations. The rate of duty will be 2.5 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that
For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--
(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note;
Based on the facts provided, the “Banana Apple Strawberry”, when made in Canada using banana puree from Mexico, apple puree concentrate and strawberry puree from the United States, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(i). It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using banana puree from Mexico, apple puree concentrate from the United States and strawberry puree from Chile, the Banana Apple Strawberry will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and General Note 12(t)/20.4. It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using banana puree from Ecuador or Costa Rica and/or apple puree concentrate from Chile, the Banana Apple Strawberry will not qualify for NAFTA preferential treatment because the banana puree and apple puree concentrate will not undergo the change in tariff classification required by General Note 12(t)/20.4.
The “Apple Sweet Potato Pineapple”, when made in Canada using apple puree concentrate from Chile and pineapple juice concentrate from Thailand or Ecuador, will not qualify for NAFTA preferential treatment, because the apple puree concentrate and pineapple juice concentrate will not undergo the change in tariff classification required by General Note 12(t)/20.4.
The “Pear Banana Raspberry”, when made in Canada using pear puree concentrate and raspberry puree from the United States and banana puree from Mexico, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(i). It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using pear puree concentrate from the United States, banana puree from Mexico and raspberry puree from Chile, the “Pear Banana Raspberry” will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and General Note 12(t)/20.4. It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using pear puree concentrate from Chile and/or banana puree from Ecuador or Costa Rica, the “Pear Banana Raspberry” will not qualify for NAFTA preferential treatment, because the pear puree concentrate and banana puree will not undergo the change in tariff classification required by General Note 12(t)/20.4.
The “Peach Apple Banana”, when made in Canada using peach puree concentrate and apple puree concentrate from the United States and banana puree from Mexico, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(i). It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using peach puree concentrate and apple puree concentrate from Chile and/or banana puree from Ecuador or Costa Rica, the “Peach Apple Banana” will not qualify for NAFTA preferential treatment, because the peach puree concentrate, apple puree concentrate and banana puree will not undergo the change in tariff classification required by General Note 12(t)/20.4.
The “Apple Peach Strawberry”, when made in Canada using apple puree concentrate, peach puree concentrate, and strawberry puree from the United States, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(i). It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using apple puree concentrate and peach puree concentrate from the United States, and strawberry puree from Chile, the “Apple Peach Strawberry” will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and General Note 12(t)/20.4. It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using apple puree concentrate and/or peach puree concentrate from Chile, the “Apple Peach Strawberry” will not qualify for NAFTA preferential treatment, because the apple puree concentrate and peach puree concentrate from Chile will not undergo the change in tariff classification required by General Note 12(t)/20.4.
The “Banana Pear Sweet Potatoes”, when made in Canada using banana puree from Mexico, pear puree concentrate and sweet potato puree from the United States, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(i). It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
When made in Canada using banana puree from Ecuador or Costa Rica, and/or pear puree concentrate from Chile, the “Banana Pear Sweet Potatoes” will not qualify for NAFTA preferential treatment, because the banana puree and pear puree concentrate from Chile will not undergo the change in tariff classification required by General Note 12(t)/20.4.
The “Pear Mango Squash” and “Apple Mango Carrot” will qualify for NAFTA preferential treatment, because all of the non-originating ingredients will meet the requirements of HTSUS General Note 12(b)(ii)(A) and General Note 12(t)/21.8. They will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
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 Stanley Hopard at (646) 733-3029.
Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, Regulations & Rulings, 799 9th Street N.W. - 7th floor, Washington, DC 20229-1177.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division