CLA-2-07: RR: NC: SP: 231 M83423
Mr. Jim Mumm
Mumm’s Sprouting Seeds Ltd.
P.O. Box 80
Parkside, SK, SOJ 2AO
Canada
RE: The tariff classification of two seed mixtures from Canada.
Dear Mr. Mumm:
In your letter dated April 22, 2006, you requested a tariff classification ruling.
The merchandise under consideration are two seed mixtures, described below with their net weight as a percent of their weight in the mixture and with the country in which they were sourced. These mixtures will be imported in retail plastic bags of 3.5-ounce (100g) each and in 5,10 and 25 kilogram bags for industrial use (commercial sprouting).
“Ancient Eastern Blend” seed mixture consists of fenugreek seed (37 percent), from Australia, lentils (37 percent) and kamut seed (16 percent) from Canada and adzuki beans (10 percent) from China.
“Broccoli Brassica Blend” seed mixture consists of broccoli seed (30.5 percent) from the U.S., arugula (1.7 percent) from Italy and, from Canada, broccoli raab (30.5 percent), canola seed (30.5 percent), radish seed (5.1 percent) and mustard seed (1.7 percent).
Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Since no one heading in the tariff schedule covers the components of the “seed mixtures” in combination, GRI 1 cannot be used as a basis for classification. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.
In the instant case, the “Ancient Eastern Blend” consists of 47 percent lentils and adzuki beans of heading 07.13, HTSUS, as well 37 percent fenugreek seeds of heading 09.10, HTSUS and 16 percent kamut seed of heading 10.01, HTSUS. Based on the predominant weight of the lentil and adzuki seeds, this mixture will be classified in heading 07.13, HTSUS. The “Broccoli Brassica Blend” consists of 67.8 percent broccoli, broccoli raab, radish and arugula seeds of heading 12.09, HTS, 30.5 percent of canola seeds of heading 12.05, HTSUS, and 1.7 percent mustard seeds of heading 12.07, HTSUS. Based on the predominant weight of the broccoli, broccoli raab, radish and arugula seeds, the “Broccoli Brassica Blend” will be classified in heading 12.09, HTSUS.
The applicable subheading for the “Ancient Eastern Blend” will be 0713.40.1000, Harmonized Tariff Schedule of the United States (HTSUS),which provides for dried leguminous vegetables, shelled, whether or not skinned or split, Lentils: seeds of a kind used for sowing. The rate of duty will be 1.5 cents per kilogram.
The applicable subheading for the “Broccoli Brassica Blend” will be 1209.91.8090, HTSUS, which provides for other…vegetable seeds…other. The rate of duty will be 1.5 cents per kilogram.
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 North American Free Trade Agreement (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--
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.
The seed mixtures do not qualify for preferential treatment under NAFTA because the non-originating materials from China and Italy will not undergo the change in tariff classification required by General Note 12(t)/12.5,and 12(t)/7 HTSUS.
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 to 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 NAFTA 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.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that, the seed mixture “Ancient Eastern Blend” is a product of Canada, Australia and China. The “Broccoli Brassica Blend is a product of Canada, the United States and Italy for marking purposes.
If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. 1304. Whether an article may be marked with the phrase “Made in the USA” or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the United States.
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 telephone number (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 Thomas Brady at 646-733-3030.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division