CLA-2-22:OT:RR:NC:2:235
Mr. Charles McFeeters Jr.
Associates in Global Logistics, LLC
P.O. Box 1594, 2 North Main Street
St. Albans, Vermont 05478
RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of Flavored Vinegars from Canada
Dear Mr. McFeeters:
In your letter dated November 30, 2011, you requested a ruling on the Classification, Country of Origin, and Trade Program Applicability under NAFTA of flavored vinegars from Canada.
The subject products are available in four different flavors. The finished flavored vinegars are produced from the following materials: Vinegar from Spain and Italy (10.8 percent acetic acid), Grape Juice Concentrate from Italy, and Berry Concentrate from Chile. The indicated flavors are raspberry balsamic, blackberry balsamic, white and original balsamic vinegar. You indicate that these products will be manufactured from both foreign and domestic material. The acetic acid of the finished products will be 5 percent. In your ruling request you provided labor and packaging components which were listed as domestic inputs. As there is no value component in the applicable NAFTA Rules for the subject product, we will not address value components in this ruling letter.
The applicable tariff provision for the four Flavored Vinegars will be 2209.00.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Vinegar and substitutes for vinegar obtained from acetic acid. The general rate of duty will be 0.5¢/pf.liter.
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/.
Regarding the eligibility for NAFTA preferential treatment, 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… (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…
The applicable rule states that each ingredient of foreign origin must meet the requirement of “A change to heading 2209 from any other heading, except from tariff items 2106.90.12, 2106.90.15 or 2106.90.18 or headings 2203 through 2208.” The flavored vinegar does not qualify for preferential treatment under NAFTA because the Vinegar fails to meet the required tariff shift specified in General Note 12(t)/22.11. It is therefore ineligible for preferential duty treatment under these provisions.
You also requested a determination of the “Country of Origin” for the flavored vinegar. 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 134.1(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. 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. 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 102.11 of the regulations to the facts of this case, we find that the Flavored Vinegars are goods of Canada for marking purposes. 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 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 Paul Hodgkiss at (646) 733-3046.
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