CLA-2-07:OT:RR:NC:N2:228
Ms. Maria E. Celis
Neville Peterson LLP
17 State Street, 19th floor
New York, NY 10004
RE: The status under the North American Free Trade Agreement (NAFTA) of a Brussels sprout product from Mexico; Article 509
Dear Ms. Celis:
In your letter dated February 1, 2012, on behalf of General Mills, Inc, Minneapolis, MN, you requested a ruling on the status of a Brussels sprout product from Mexico under the NAFTA.
A description of the merchandise, image of the packaging for a similar product, sample, processing information, and ingredients breakdowns were submitted with your letter. The sample was examined and disposed of. Green Giant brand “Baby Brussels Sprouts & Butter Sauce” is said to consist of frozen Brussels sprouts and frozen butter sauce chips, packed in a microwave bag. Examination of the sample found the product contains frozen, whole, Brussels sprouts packed with chunks of butter sauce in a retail bag holding 538 grams (l lb 3 oz), net weight.
The frozen Brussels sprouts are products of Belgium. The frozen butter sauce “chips” are products of the United States. In Mexico, frozen Brussels sprouts and frozen butter sauce “chips” are stored separately. Then, the sprouts and butter sauce “chips” are inspected, and put up together in proper proportions in a microwave bag. The “Baby Brussels Sprouts & Butter Sauce” will be imported in frozen condition. The consumer is instructed to microwave the product in the bag or a dish, or cook it in a saucepan on the stove-top to create a ready-to-eat vegetable dish.
You suggested the “Baby Brussels Sprouts & Butter Sauce” may be classified under subheading 2004.90.85, Harmonized Tariff Schedule of the United States (HTSUS), the provision for other frozen prepared or preserved vegetables, and the product would be qualified as NAFTA originating. We cannot agree. The frozen Brussels sprouts have not been “prepared or preserved”, but have simply been packed with frozen butter sauce “chips.” The frozen Brussels sprouts and frozen butter sauce “chips” maintain their original identity. Each commodity remains complete and recognizable. At the time of importation, the product will be classified as a set put up for retail sale, whose essential character is imparted by the frozen Brussels sprouts. The “Baby Brussels Sprouts & Butter Sauce” is classifiable in heading 0710, and the product will not be considered an originating good under the NAFTA.
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
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; . . . .
Based on the facts provided, the “Baby Brussels Sprouts & Butter Sauce” will not qualify for preferential treatment under the NAFTA because the frozen Brussels sprouts will not undergo the change in tariff classification required by General Note 12(t)/7.1, HTSUS.
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides, in general, that all articles of foreign origin imported into the United States must be legibly, indelibly, conspicuously, and permanently marked to indicate the English name of the country of origin to an ultimate purchaser in the United States. The implementing regulations to 19 U.S.C. 1304 are set forth in Part 134, Customs Regulations (CFR Part 134). The sample you have submitted does not appear to be properly marked with the country of origin. You may wish to discuss the matter of country of origin marking with the Customs Import Specialist at the proposed port of entry.
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 Bruce N. Hadley, Jr. 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,
Thomas J. Russo
Director
National Commodity Specialist Division