CLA-2-8:OT:RR:NC:2:228
Mr. Steven Zisser
Zisser Customs Law Group
2297 Niels Bohr Court
San Diego, CA 92154
RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of freeze dried strawberries, grown and frozen in the United States, freeze dried in Spain; Article 509
Dear Mr. Zisser:
In your letter dated February 16, 2009, on behalf of Watershed Foods, Inc., Gridley, IL, you requested a ruling on the status of freeze dried strawberries from Spain under the NAFTA.
As described in your letter, strawberries, grown and frozen in the United States, will be shipped to Spain and placed in a “Customs bonded facility.” There, the strawberries will be further processed by freeze drying, and returned to the United States.
The applicable tariff provision for the freeze dried strawberries will be 0813.40.2060, Harmonized Tariff Schedule of the United States (HTSUS), which provides for fruit, dried…other fruit…berries…other…other. The general rate of duty will be 1.4 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 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
The merchandise does not qualify for preferential treatment under the NAFTA because none of the above requirements are met.
In your letter, you suggested the strawberries would qualify as NAFTA originating goods because freeze drying the fruit in Spain was an “operation necessary to preserve [them] in good condition or to transport [them] to the territory of a Party”, permitted by NAFTA Article 411 (i.e., transshipment, General Note 12(l)). We disagree. Freeze drying the strawberries is neither necessary to preserve or transport the fruit, nor the sort of processing falling within the NAFTA Rules of Origin Regulations, Section 16, subsection 1(b). Pursuant to Section 16, subsection 2, the freeze dried strawberries are considered to be entirely non-originating.
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 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 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