CLA-2-20:RR:NC:SP:232 I81080
Mr. Stephen J. Leahy
175 Derby Street-Suite 9
Hingham, Massachusetts 02043
RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of various orange juice concentrates from Canada; Article 509
Dear Mr. Leahy:
In your letter dated April 17, 2002, on behalf of Vitality Food Service Canada, Ltd., you requested a ruling on the status of various orange juice concentrates from Canada under the NAFTA. Your request also asks for the country of origin for marking purposes of the products.
You present three scenarios for the orange juice concentrates. In the first scenario, the subject merchandise, identified as Recipe 0515, consists of water, orange concentrate, orange aroma and orange oil. You indicate that 65 degree brix frozen orange juice concentrate is shipped from the United States to Canada. In Canada, the orange concentrate is combined with water, orange aroma, and orange oil to produce a 58 degree brix frozen orange juice concentrate. The product is shipped to the United States, in bulk, for sale to food service distributors and institutions. The ingredients are products of Canada, except for the orange juice concentrate, which is produced in the United States.
Scenario two is identical to scenario one, except that the frozen concentrated orange juice shipped to Canada is produced in Brazil, instead of the United States.
The subject merchandise in scenario three, identified as Product Code 3254, consists of filtered water, sodium benzoate, ascorbic acid, 64 degree brix Florida concentrate, 65 degree brix California orange concentrate, orange oil and orange aroma. You indicate that the merchandise is blended, pasteurized and packaged in Canada and returned to the United States. The product shipped to the United States is not frozen and will have a brix of 50.2 degrees.
The applicable tariff provision for the bulk 58 degree brix frozen concentrated orange juice in scenarios one and two, in containers each holding 0.946 liter or more but not more than 3.785 liters will be 2009.11.0040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for Fruit juices…not fortified with vitamins or minerals, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter: orange juice: frozen…other. The general rate of duty will be 7.85 cents per liter.
The applicable tariff provision for the bulk 58 degree brix frozen concentrated orange juice in scenarios one and two, in containers of more than 3.785 liters will be 2009.11.0060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for Fruit juices…not fortified with vitamins or minerals, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter: orange juice: frozen…other. The general rate of duty will be 7.85 cents per liter.
In scenario one, where the orange juice concentrate is produced in the United States, the bulk 58 degree brix frozen concentrated orange juice, being wholly obtained or produced entirely in the territory of the United States and Canada, will meet the requirements of HTSUSA General Note 12(b)(i), and will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
In scenario two, where the orange juice concentrate is produced in Brazil, the merchandise would not qualify for preferential treatment under the NAFTA because the non-originating orange juice concentrate used in the production of the good will not undergo the change in tariff classification required by General Note 12(t)/20, HTSUSA.
Your inquiry does not provide enough information for us to give a classification ruling on scenario three. Your request for a classification ruling should include the origin of each ingredient, the processing performed in each country, and how the product will be packaged when imported. Indicate the vitamin C content of the orange juice prior to the pasteurization process, and the vitamin C content after it was added back. Please advise how the amount of vitamin C lost in the pasteurization process is determined to insure the amount added back does not exceed the amount found in the natural juice. When this information is available, you may wish to consider resubmission of your request. We are returning any related samples, exhibits, etc. If you decide to resubmit your request, please include all of the material that we have returned to you.
Your inquiry also requests a ruling on the country of origin marking requirements for an imported article which is processed in a NAFTA country prior to being imported into the U.S. A marked sample was not submitted with your letter for review.
The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the
U.S. 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 the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.
The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.
Section 134.1(b) of the regulations, defines "country of origin" as
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. 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 this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).
Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.
You state that the imported 58 degree brix frozen concentrated orange juice is processed in a NAFTA country "Canada" prior to being imported into the U.S. Since, "Canada" is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported 58 degree brix frozen concentrated orange juice is a “good of a NAFTA country", and thus subject to the NAFTA marking requirements.
Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts presented, we find that in the case where the orange juice concentrate is produced in the United States, the country of origin for marking purposes of the imported 58 degree brix frozen concentrated orange juice is the United States, noting Section 102.11(b)(1). In the case where the orange juice concentrate is produced in Brazil, the country of origin for marking purposes is Brazil, noting Section 102.11(b)(1). Marking the containers “Packaged in Canada from orange juice concentrate from Brazil”, is not an acceptable country of origin marking based on the facts presented in this scenario.
Noting Section 102.19(b) of the regulations, when the orange juice concentrate is produced in the United States, making the U.S. the country of origin for marking purposes, the country of origin of the 58 degree brix concentrated orange juice for Customs duty purposes is Canada.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).
This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.
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 John Maria at 646-733-3031.
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 Service, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division