CLA-2-07:OT:RR:NC:N2:228
Mr. James King
Affiliated Customs Brokers USA, Inc.
193 West Service Road
Champlain, NY 12919
RE: The tariff classification, country of origin, country of origin marking, and status under the North American Free Trade Agreement (NAFTA) of stir-fry meal kits from Canada; Article 509
Dear Mr. King:
In your letters dated June 18, October 1, and November 4, 2014, on behalf of Veg Pro International Inc., Canada, you requested a ruling on classification, country of origin, country of origin marking, and the status under the NAFTA of stir-fry meal kits from Canada.
An information sheet describing the meal kits, ingredient lists (in French) with weights, copies of the top package labels of the kits, and a spreadsheet listing the country of origin and weight of each ingredient in the meal kits were submitted with your June 18th letter. Additional information including proposed ingredient list labels and cooking instructions were provided with your October letter. Samples and extra information were forwarded with your November letter. The samples were examined and disposed of. The manufacturing information of the mixed vegetable was submitted via an e-mail message, dated November 26, 2014. We observed discrepancies in the ingredients compositions within the documents provided. For the purposes of this ruling, we have used the ingredient breakdowns in the spreadsheet submitted with your June 18th letter. Fresh Attitude brand Stir Fry Concept meal kits presented in four varieties, Sweet & Sour, Teriyaki, General Tao and Thai, are complete easy-to-cook kits used to make hot vegetable meals, packed in re-sealable microwavable plastic containers with lids for retail sale weighing 11.35-11.6 oz. (322-325 grams), net weight. The containers contain mixtures of fresh vegetables on the bottom and sealed compartmentalized trays fitted on top. The sealed compartmentalized trays are divided into six sections containing, depending on variety, prepared or preserved vegetable products, nuts, dry noodles, baked multigrain chips, fruit, Cantonese egg noodles, sauce, and a plastic fork. The meal kits will be imported in refrigerated condition.
The Sweet & Sour meal kit is composed of 65 milliliters sweet and sour sauce, 25 grams prepared pineapple chunks, 25 grams Cantonese egg noodles, 12 grams toasted coconut chips, 10 grams dry chow mein noodles, and a plastic fork in the sealed compartmentalized tray on top, and below a mixture of 40 grams kale, 35 grams carrots, 35 grams onions, 30 grams sweet red bell pepper, 25 grams spinach, and 20 grams sugar snap peas.
The Teriyaki meal kit contains 65 milliliters teriyaki sauce, 25 grams Cantonese egg noodles, 25 grams canned cut baby corn, 15 grams roasted diced almonds, 10 grams whole wheat noodles, and a plastic fork in the sealed compartmentalized tray on top, and below a mixture of 35 grams carrots, 35 grams onions, 25 grams baby bok choy, 25 grams kale, 20 grams sugar snap peas, and 20 grams broccoli.
The General Tao meal kit consists of 65 milliliters General Tao sauce, 25 grams Cantonese egg noodles, 25 grams canned bamboo shoot strips, 15 grams diced cashew nuts, and 10 grams crispy salad noodle (crispy rice noodles), and a plastic fork in the sealed compartmentalized tray on top, and below a mixture of 35 gram Swiss chard, 35 grams onions, 35 grams sweet red bell pepper, 30 grams sugar snap peas, 30 grams carrots, and 25 grams spinach.
The Thai meal kit contains 65 milliliters Thai sauce, 25 grams Cantonese egg noodles, 25 grams canned sliced Chinese water chestnuts, 15 grams roasted sliced almonds, and 10 grams baked multi-seed chips (bites) and a plastic fork in the sealed compartmentalized tray on top, and below a mixture of 35 grams Swiss chard, 35 grams spinach, 35 grams kale, 35 grams carrots, 35 grams onions, and 20 grams zucchini.
The baby corn, bamboo shoots, and pineapples are cut or stripped, and then canned in Thailand for exportation to Canada. In Canada, they are packed in the meal kits without further process. The canned sliced Chinese water chestnuts are made in China and repackaged in the meal kits in Canada without further process. The roasted diced and sliced almonds, dry diced cashews nuts, baked multi-seed chips (bites), and forks are products of the United States. The sauces, toasted coconut chips, chow mein noodles, Cantonese egg noodles, whole wheat noodles, crispy salad noodle (crispy rice noodles) are products of Canada. The fresh vegetables in each kit will come from Canada during the period of June 1 to October 31 and from the United States during the period of November 1 to May 31. The Canadian or U.S.-origin vegetables depending on different time periods are cut and mixed, then packed with other items into the meal kits in Canada. Cooking instructions direct users to add the ingredients from the tray to the mixture of the vegetables in the container, close the lid, microwave for 2 minutes, stir and close the lid, microwave again for 30 seconds to 2 minutes, then serve. The meal can also be cooked in a pan or wok. Each kit will be classified as a set put up for retail sale.
The product labels sealed on the lids of the containers of the four meal kits are presented in the similar way, different only in the names of the varieties, the pictures of the finished products, and the names and pictures of the five ingredients in each tray. Each product label is in square like shapes with four corners cut off. The center of the label resembles a yin-yang circle. Except the name of the product flavor (such as Thai, General Tao) and the brand name of the product written in English only, other text contents are written in English and French juxtaposed side by side. The name of the product flavor in a small rectangular box is partially overlapped on the top of the yin-yang circle at the left top corner of the label. At the left bottom corner of the label, a small rectangular box containing a statement of “READ TO COOK IN THE BOWL” and a picture of microwave with a “2-4 MIN” print is partially overlapped on the top of the yin-yang picture. Outside the yin-yang circle on the right side of the label, the word of “RECLOSABLE” and its symbol, and a legend of “cooking instructions on back of this cover” written in all capital case display on the top corner; the weight of the product shows at the bottom corner. The yin-yang circle consists of a white part in small portion on the left top surrounded by a dark part in large portion. The white part displays the picture of the finished cooked vegetable meal. The right side of the dark portion lists the pictures along with the names of the five ingredients in the compartmentalized tray. In the center of the yin-yang circle at the dark portion, the brand name of the product and its logo are printed. Under the brand name and logo, there is a phrase of “STIR FRY” followed beneath by a steaming bowl with a phrase of “Meal Solution,” and a symbol with a phrase of “Vegetable Portions”. At the left bottom corner in the dark portion of the yin-yang circle, there is a print of “Keep refrigerated.” A statement of “Made in Canada from local and imported ingredients” written in white texts shows in the dark portion of the circle at the middle bottom.
The applicable subheading for the Stir Fry Concept Teriyaki meal kit, when entered during the period from July 1 to September 30, inclusive, in any year, will be 0708.10.2000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for leguminous vegetables, shelled or unshelled, fresh or chilled ... peas (Pisum sativum) ... if entered during the period from July 1 to September 30, inclusive, in any year. The general rate of duty will be 0.5 cents per kilogram. If not entered during the abovementioned period, the applicable subheading will be 0708.10.4000, HTSUS, and the general rate of duty will be 2.8 cents per kilogram.
The applicable subheading for the Stir Fry Concept Sweet & Sour meal kit, will be 0709.70.0000, HTSUS, which provides for other vegetables, fresh or chilled ... Spinach, New Zealand spinach and orache spinach (garden spinach). The general rate of duty will be 20 percent ad valorem.
The applicable subheading for the Stir Fry Concept General Tao meal kit and Thai meal kit, will be 0709.99.9000, HTSUS, which provides for other vegetables, fresh or chilled ... other... other. The general rate of duty will be 20 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 the 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
(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 four meal kits described above qualify as originating goods under General Note 12 (b) no matter whether the fresh vegetables come from Canada or the United States because they meet the requirements of General Note 12(b)(ii)(A) and 12(t)/7.1. However, in accordance with General Note 12(a), the meal kits must also qualify to be marked as a product of Canada to be eligible for NAFTA preferential treatment.
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 C.F.R. 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.
As provided in section 134.41(b), Customs Regulations (19 C.F.R. § 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.
Section 134.46, Customs Regulations (19 C.F.R. § 134.46), requires that
In any case in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, there shall appear legibly and permanently in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” “ Product of,” or other words of similar meaning.
In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality or other than the actual country of origin appears.
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.
Section 102.17 of the regulations defines “non-qualifying operations” and states, in part:
A foreign material shall not be considered to have undergone an applicable change in tariff classification specified in §102.20 or 102.21 or to have met any other applicable requirements of those sections merely by reason of one or more of the following:
(c) Simple packing, repacking or retail packaging without more than minor processing;
Section 102.19(a) of the regulations contains a “NAFTA preference override”:
Except in the case of goods covered by paragraph (b) of this section, if a good which is originating within the meaning of § 181.1(q) of this chapter is not determined under § 102.11(a) or (b) or § 102.21 to be a good of a single NAFTA country, the country of origin of such good is the last NAFTA country in which that good underwent production other than minor processing, provided that a Certificate of Origin . . . has been completed and signed for the good.
“Production” is defined as “growing, mining, harvesting, fishing … manufacturing, processing or assembling a good” in Section 102.1(n). “Minor processing” is defined by Section 102.1(m), in part, as “(6) Putting up in measured doses, packing, repacking, packaging, repackaging.”
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the country of origin of the imported meal kits is Canada no matter whether the fresh vegetables come from Canada or the United States.
The proposed marking on the labels, as described above, is conspicuously, indelibly, legibly, and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, and is an acceptable country of origin marking for the imported meal kits.
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 [email protected].
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, 90 K Street N.E. – 10th floor, Washington, DC 20229-1177.
Sincerely,
Gwenn Klein Kirschner
Director
National Commodity Specialist Division