CLA-2-19:OT:RR:NC:N2:228
Ms. Antoinette Lasek
Trans World Shipping Service, Inc.
300 Water Street
Baltimore, MD 21202
RE: The tariff classification and country of origin marking of dinner kits from Romania
Dear Ms. Lasek:
In your letters dated October 28, November 30, 2011 and January 12, 2012, you requested a tariff classification and country of origin marking ruling on behalf of Sam Mills USA LLC, Boyton Beach, FL.
Descriptive literature accompanied your October letter. Additional information was provided in your subsequent correspondence. An addendum to the January letter was received by this office via email on January 31, 2012. Six products (Natural Chedder Mac & Cheese, Deluxe Mac & Cheese, Cheesy Tuna, Cheesy Burger, Beef Lasagna, and Beef Stroganoff) are identified in your letters. These products are meatless dinner kits, consisting of a pouch of dry, uncooked, unstuffed, non-egg, corn pasta and a pouch of a powder sauce mix, sauce or seasoning mix, in a folding carton box. The corn pasta is made from corn flour and water. Natural Chedder Mac & Cheese contains a pouch of Gluten Free Yellow Cheddar Cheese Sauce Mix #62085, in the form of powder, designed to create a cheddar cheese flavored sauce for meal kits. Deluxe Mac & Cheese contains a pouch of a sauce, Pasteurized Process Cheese Sauce #43147. Cheesy Tuna contains a pouch of Gluten Free Cheesy Tuna Dinner Mix #70159, a powder blend, designed to create a cheesy sauce for pasta dishes. Cheesy Burger contains a pouch of a powder seasoning mix, Gluten Free Cheeseburger Dinner Mix #70158. Beef Lasagna contains a pouch of Gluten Free Lasagna Dinner Mix #73028, a powder sauce mix used to create a tomato and Italian herb flavored sauce for pasta dishes. Beef Stroganoff contains a pouch of a powder blend, Gluten Free Stroganoff Dinner Mix #60048, designed to create a sauce for pasta dishes.
The pasta is a product of Romania. The sauce, seasoning mix and sauce mixes are products of the United States. The cartons are from the European Union. In Romania, a pouch of the pasta and a pouch of the sauce, seasoning mix or sauce mix are packed together in a folding box as a dinner kit, and the box is sealed. Multiple boxes/dinner kits are packed into cartons that are sealed. No further processing has been done to the U.S.-origin pouches.
The applicable subheading for the six dinner kits will be 1902.19.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for pasta … uncooked pasta, not stuffed or otherwise prepared … other … other, including pasta packaged with sauce preparations. The rate of duty will be 6.4 percent ad valorem.
Products classified in subheading 1902.19.4000, HTSUS, will not require the presentation of EU form P2 when entered.
Subheading 9801.00.1095, HTSUS, provides for the duty-free entry of products of the U.S. that are returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided there has been compliance with the documentary requirements of section 10.1, Customs Regulations (19 C.F.R. §10.1).
In this case, the U.S.-origin sauce, seasoning mix and sauce mixes are not advanced in value or improved in condition while abroad. Therefore, when the above-described dinner kits are imported, these components will be entitled to duty-free treatment under subheading 9801.00.1095, HTSUS, assuming compliance with the documentation requirements of 19 C.F.R. §10.1.
The boxes are not suitable for reuse and are disposable containers of the kind normally used for packing the dinner kits. In accordance with General Rule of Interpretation 5(b) HTSUS, they will be classified with the goods they contain. Their value will be considered a part of the value of their contents, and dutiable at the rate of its contents (6.4 percent).
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 the World Wide Web at http://www.usitc.gov/tata/hts/.
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, U.S. Customs and Border Protection Regulations (19 C.F.R. §134) implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304.
Section 134.1(d), Customs Regulations (19 CFR § 134.1(d)), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported …. The following examples may be helpful: (3) If an article is to be sold at retail in its imported form, the purchaser at retail is the “ultimate purchaser.”
Section 134.1(b) of the regulations (19 C.F.R. § 134.1(b)), defines "country of origin" as:
[T]he country of manufacture, production, or growth of any article of foreign origin entering the United States. 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 the meaning of this Part…
A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993). However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983).
In this case, we find that none of the U.S.-origin components of the dinner kits is substantially transformed in Romania as a result of its inclusion in the kits. Accordingly, each component in the kits must be marked to indicate its own country of origin, subject to the usual exceptions. The pouch of the pasta should be marked as a product of Romania. The sauce, sauce mixes and seasoning mix of U.S.-origin are 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 U.S.
Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR §134.32(d)), Customs excepts from individual marking requirements imported articles for which the marking of the containers will reasonably indicate the origin of the articles. The container exception applies where “the outermost container or holder in which the article ordinarily reaches the ultimate purchaser [is] marked to indicate the country of origin of the article….” 19 CFR § 134.22(a).
Section 134.24 (d) (1) of the regulations (19 C.F.R. § 134.24 (d) (1)), provides that usual disposable containers, when contents are excepted from marking, at the time of importation shall not be required to be marked to show the country of their own origin, but shall be marked to indicate the origin of their contents regardless of the fact that the contents are excepted from marking requirements.
The marking requirements for retail containers, including shipping cartons, depend in part on whether the containers are imported in a sealed or unsealed condition. Sealed containers of imported merchandise “which are sold without normally being opened by the ultimate purchaser . . . shall be marked to indicate the country of origin of their contents.” 19 CFR § 134.24(d)(2). For unsealed containers that are “normally opened by the ultimate purchaser prior to purchase, only the article need be marked.” 19 CFR § 134.24(d)(3).
If the dinner kits will reach the ultimate purchasers in their outer boxes, marking only the outer boxes with the country of origin is sufficient to comply with marking law and regulations. If the dinner kits will be sold to the ultimate purchasers in individual inner boxes, marking the inner boxes with the country of origin is sufficient to comply with marking law and regulations.
Based on the facts presented, the inner boxes and outer boxes can be marked with “Product of Romania”, “Made in Romania” or other words of similar meaning provided that Customs officials at the port of entry are satisfied that the ultimate purchasers will receive the dinner kits in their original unopened, marked containers. As indicated above, the country of origin marking rules do not apply to articles of U.S. origin and it is not necessary to indicate the origin of the sauce, sauce mixes and seasoning mix. We would not object to their inclusions in the proposed marking. As noted above, if you choose to indicate the U.S. origin of any item, then the marking will need to comply with the requirements of the Federal Trade Commission.
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 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 Bruce N. Hadley, Jr. at (646) 733-3029.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division