CLA-2-20:OT:RR:NC:2:228
Ms. April Collier
Pacific Customs Brokers, Inc.
P.O. Box 4505
Blaine, WA 98231-4505
RE: The tariff classification, country of origin marking and status under the North American Free Trade Agreement (NAFTA), of cereal products from Canada; Article 509
Dear Ms. Collier:
In your letter dated March 17, 2011, on behalf of Tilly’s Galley, Ltd., you requested a ruling on the status of cereal products from Canada under the NAFTA.
Samples, submitted with your letter, were forwarded to the U.S. Customs and Border Protection laboratory for analysis. Additional information was provided in an undated letter, received by this office on April 28, 2011. The products, “Holy Crap” and “Skinny B,” are described as breakfast cereals composed of a dry mixture of seeds, grains, and fruits, packed for retail sale in sealed, metalized plastic film pouches containing 8 ounces (225 grams), net weight. Laboratory analysis determined the pouches were not airtight. Holy Crap cereal is composed of approximately 40 percent chia seed, 26 percent buckwheat, 16 percent hemp hearts, 8 percent raisins, 7 percent dried cranberries, 3 percent dried apple pieces, and less than one percent cinnamon powder. Skinny B cereal is composed of approximately 58 percent chia seed, 26 percent buckwheat, and 16 percent hemp hearts. The grains and seeds are hulled, but not processed in any other manner. Both products are ready to consume in their imported condition, raw or by adding milk. No cooking is required.
Both packages are marked in a similar manner. The front panel identifies the product (Holy Crap, Skinny B), describing it as “the world’s most amazing breakfast cereal”, states its nutritional benefits (viz., gluten free, lactose free, vegan, high in iron and fiber, rich in omega 3 and omega 6 and antioxidants, and a source of calcium and protein), describes the product as a “Dragons’ Blend,” declares it is “Made in paradise on the Sunshine Coast, British Columbia, Canada,” provides the weight, and website for additional information. The rear panel is headed by a statement that the product is “artisan made” and “wheat free,” and identifies the product (“Skinny B,” “Cranberry Raisin Apple”). Two columns of information follow. The left column provides an ingredients statement in English and French, serving information (2 tablespoons added to milk, or one tablespoon sprinkled on yogurt, granola, or oatmeal), facts about the nutritional properties of chia seeds and hemp seeds, and a “medical disclaimer.” The right column provides the Nutrition Facts box. Below these two columns is the statement “no cooking required – eat it raw,” and beneath that the producer’s name and address, the UPC code, instructions to refrigerate after opening, and the website address.
The chia seeds are products of Mexico, the hemp and cranberries are products of Canada, the buckwheat, raisins, and apples are products of the United States, and the cinnamon is a product of Indonesia. In Canada, the ingredients are blended in the prescribed proportions, and packaged for retail sale.
In your March letter, you suggested the products may be classified in subheading 2008.92.1020, Harmonized Tariff Schedule of the United States (HTSUS), the provision for other mixtures of fruits, nuts and other edible parts of plants, in airtight containers and not containing apricots, citrus fruits, peaches or pears, prepared cereal products. Based on the ingredient composition and laboratory analysis, classification will fall elsewhere.
The applicable subheading for the Holy Crap cereal product will be 2008.92.9094, Harmonized Tariff Schedule of the United States (HTSUS), which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included…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.
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…
Based on the facts provided, the Holy Crap product described above qualifies for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/20.4. The Holy Crap product will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
Regarding the classification of the Skinny B product, Section 177.7, Customs Regulations (19 CFR 177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(a) states in part:
No ruling letter will be issued…in any instance where it appears contrary to the sound administration of the Customs and related laws to do so.
The tariff classification of Skinny B will be determined by the ingredient that imparts the good’s essential character. In making this determination, consideration must be given to the hulled chia seeds. Although the tariff classification of chia seeds was addressed in ruling NY 888636 dated July 29, 1993, U.S. Customs and Border Protection Headquarters is currently reviewing the tariff classification of hulled seeds for human consumption. Noting the prohibition set out in 19 CFR 177.7 (a) and the fact that the classification ruling request for Skinny B is closely related to an issue that is before Customs Headquarters, we are unable to issue a classification ruling letter to you with respect this item.
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 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 134.45(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.” 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.
As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.
With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
The sample of Holy Crap cereal, as described above, is conspicuously, legibly and permanently marked, and satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 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.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division