CLA-2-82:RR:NC:N1:113 J83743
Ms. Jodi C. Latner
Livingston International Trade Services, Inc.
Gateway Executive Park
3556 Lakeshore Road, Suite 200
Buffalo, NY 14219
RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of cake knives and servers from Canada; Article 509
Dear Ms. Latner:
In your letter dated April 17, 2003, you requested a ruling on the status of cake serving sets from Canada under the NAFTA.
The merchandise is a cake server and a cake knife. Handles of either polyresin, porcelain or ceramic are imported into Canada from China. Knife blades, server blades and their bolsters are imported into Canada from Taiwan. Polyester bows are imported into Canada from China. The server and knife may be imported separately or together as a retail set.
The applicable tariff provision for the cake knife with a plastic handle will be 8211.91.5060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for table knives having fixed blades, knives with rubber or plastic handles, other. The general rate of duty will be 0.7 cents each plus 3.7 percent.
The applicable tariff provision for the cake knife with a porcelain or ceramic handle will be 8211.91.8060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for table knives having fixed blades, other, other. The general rate of duty will be 0.3 cents each plus 4.9 percent ad valorem.
The applicable tariff provision for the cake server will be 8215.99.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for cake servers, other. The general rate of duty will be 5.3 percent ad valorem.
The applicable tariff provision for the server and knife imported as a set will be 8215.20.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other sets of assorted articles. The rate of duty is the rate of duty applicable to that article in the set subject to the highest rate of duty. Based on the values you mentioned on the telephone, the general rate of duty will be 5.3 percent ad valorem under heading 8215.99.5000, HTS.
For the first part of this ruling, we will assume that the items are imported into the United States separately.
General Note 12(a)(I) (North American Free Trade Agreement) provides:
Goods that originate in the territory of a NAFTA party under the terms of subdivision (b) of this note and that qualify to be marked as goods of Canada under the terms of the marking rules set forth in regulations issued by the Secretary of the Treasury (without regard to whether the goods are marked), when such goods are imported into the customs territory of the United States and are entered under a subheading for which a rate of duty appears in the "Special" subcolumn followed by the symbol "CA" in parentheses, are eligible for such duty rate, in accordance with section 201 of the North American Free Trade Agreement Implementation Act.
19 CFR 102.11 contains the marking rules for purposes of determining the country of origin of imported goods other than textile and apparel products. 19 CFR 102.11(a) states:
The country of origin of a good is the country in which:
(1) The good is wholly obtained or produced;
(2) The good is produced exclusively from domestic materials; or
(3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in § 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.
Neither (1) nor (2) is applicable in this case; therefore, we look for an applicable change in tariff heading as set out in section 102.20. The applicable heading change in this case reads:
8208–8215
A change to heading 8208 through 8215 from any other heading, including another heading within that group.
Since heading 8215 provides only for base metal parts, including handles, the polyresin, porcelain or ceramic handles necessarily are classifiable outside that group and undergo the applicable heading change. So is the polyester bow. However, both the cake server blade and the imported finished cake server are classifiable in heading 8215, HTS. The blade does not undergo the applicable tariff change, and we must refer to the next rule.
The next rule is 19 CFR 102.11(b), which states:
(b) Except for a good that is specifically described in the Harmonized System as a set, or is classified as a set pursuant to General Rule of Interpretation 3, where the country of origin cannot be determined under paragraph (a) of this section:
(1) The country of origin of the good is the country or countries of origin of the single material that imparts the essential character to the good.
Since we are considering the cake server separately, it is not a set. The country of origin of the good will be the single material that imparts the essential character to the good. Section 102.18(b) of the Rules of interpretation defines the material that imparts the essential character to the good.
(b) (1) For purposes of identifying the material that imparts the essential character to a good under § 102.11, the only materials that shall be taken into consideration are those domestic or foreign materials that are classified in a tariff provision from which a change in tariff classification is not [emphasis supplied] allowed under the § 102.20 specific rule or other requirements applicable to the good. For purposes of this paragraph (b)(1):
(i) The materials to be considered must be classified in a tariff provision from which a change in tariff classification is not [emphasis supplied] allowed under the specific rule or other requirements applicable to the good under consideration.
In this case, the material that imparts the essential character of the good is the cake server blade, which does not change its heading. Therefore, the country of origin of the cake server is Taiwan. [19 CFR 102.11(b)(1)].
Likewise, both the knife blade and the imported finished knife are classifiable in heading 8211, HTS. 19 CFR 102.11(a)(3) is also inapplicable. As above, the blade fails to change heading as required by Section 102.20. For the same reasons as the cake server, the country of origin of the separately imported knife is Taiwan.
Neither of these items qualifies to be marked as goods of Canada under the terms of the marking rules set forth in regulations.
For the second part of this ruling, we will assume that the items are imported into the United States together, packaged for retail sale. Upon importation, the set is classified in a specifically described heading for other sets of assorted articles under heading 8215, HTS. For the same reasons given above, the country of origin cannot be determined under Section 102.11(a) or (b). Section 102.11(c) states:
(c) Where the country of origin cannot be determined under paragraph (a) or (b) of this section and the good is specifically described in the Harmonized System as a set or mixture, or classified as a set, mixture or composite good pursuant to General Rule of Interpretation 3, the country of origin of the good is the country or countries of origin of all materials that merit equal consideration for determining the essential character of the good.
Again, 19 CFR 102.18 [Rules of interpretation] state:
(b) (1) For purposes of identifying the material that imparts the essential character to a good under § 102.11, the only materials that shall be taken into consideration are those domestic or foreign materials that are classified in a tariff provision from which a change in tariff classification is not allowed under the § 102.20 specific rule or other requirements applicable to the good. For purposes of this paragraph (b)(1):
(i) The materials to be considered must be classified in a tariff provision from which a change in tariff classification is not allowed under the specific rule or other requirements applicable to the good under consideration.
In this case, the blades are the material from which a change is not allowed. 19 CFR 102.18(b)(2) states:
For purposes of determining which one of two or more materials described in paragraph (b)(1) of this section imparts the essential character to a good under § 102.11, various factors may be examined depending upon the type of good involved. These factors include, but are not limited to, the following:
(i) The nature of each material, such as its bulk, quantity, weight or value; and
(ii)The role of each material in relation to the use of the good.
The blades are the essential character of the set, and the country of origin is Taiwan. The set does not qualify to be marked as goods of Canada under the terms of the marking rules set forth in regulations.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).
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 James Smyth at 646-733-3018.
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, 799 Ninth Street, N.W., U.S. Mint Annex Bldg., Washington, D.C. 20229.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division