CLA-2-21:OT:RR:NC:N2:228
Mr. Manon MB Bertrand
Gourmet du Village
539 Chemin du Village
Morin-Heights, Quebec J0R 1H0
Canada
RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA) of spice mix products from Canada; Article 509
Dear Mr. Bertrand:
In your letter dated September 27, 2017, you requested a ruling on the status of spice mix products from Canada under the NAFTA.
Ingredients breakdowns, product label photos, and relevant information pertaining to NAFTA accompanied your inquiry. Marked samples were not submitted with your letter for review. Cranberry Sauce Mix is a dry seasoning said to contain approximately 99 percent sugar from Argentina, Belize, Brazil, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama, 0.4 percent cloves from Madagascar, 0.4 percent cinnamon from Indonesia, and 0.4 percent nutmeg from Grenada, Indonesia and India. The spices are ground and mixed with the sugar in Canada and will be sold in retail cartons of six boxes each containing a plastic pouch of mix 100 g. (3½ oz.), net weight. The directions instruct the consumer to add 454 g. (1 lb.) cranberries, 125 ml. (½ cup) orange juice and spice mix in a medium sauce pan, bring to a boil and simmer uncovered for 10 minutes, stirring frequently. Remove from heat, cover and allow to stand for 15 minutes. Serve warm or cold on turkey, chicken or pork.
Cinnamon Glazed Nut Spice Mix is a dry seasoning said to contain approximately 82 percent sugar from Argentina, Belize, Brazil, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama, 6 percent salt from Israel, 5 percent brown sugar from various countries, 5 percent cinnamon from Indonesia, one percent cloves from Madagascar, and one percent nutmeg from various countries. The spices are ground and mixed with the sugars in Canada and will be sold in retail cartons of six boxes each containing a plastic pouch of mix 178 g. (6.3 oz.), net weight. The directions instruct the consumer to preheat the oven to 150°C (300°F). In a large bowl, wisk an egg white with 5 ml. (1 tsp.) water until foamy. Add 454 g. (1 lb.) variety of nuts, not salted or roasted, stir until thoroughly coated. Then pour in the pouch of mix, stir to coat evenly. Line a baking sheet with parchment, pour mix spreading nuts in a single layer, bake for 20-25 minutes, and let cool before eating.
Savory Nut Spice Mix is a dry seasoning said to contain approximately 53 percent sugar Argentina, Belize, Brazil, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama, 14 percent salt from Israel, 13 percent cumin from India, 8 percent paprika from Spain, 7 percent garlic powder from China, 2 percent thyme from Morocco, 2 percent rosemary from Morocco, and one percent cloves from Madagascar. The spices are ground and mixed with the sugar in Canada and will be sold in retail cartons of six boxes each containing a plastic pouch of mix 90 g. (3.2 oz.), net weight. The directions instruct the consumer to preheat the oven to 150°C (300°F). In a large bowl, wisk an egg white with 5 ml. (1 tsp.) olive oil until foamy. Add 1 liter (4 cups) variety of nuts, not salted or roasted, stir until thoroughly coated. Then pour in the pouch of mix, stir to coat evenly. Line a baking sheet with paper, pour mix spreading nuts in a single layer, bake for 20-25 minutes, and let cool before eating.
The applicable subheading for the three spice mix products, if imported in quantities that fall within the limits described in additional U.S. note 4 to chapter 21, will be 2103.90.7400, Harmonized Tariff Schedule of the United States (HTSUS), which provides for mixed condiments and mixed seasonings described in additional U.S. note 3 to this chapter . . . described in additional U.S. note 4 to this chapter and entered pursuant to its provisions. The general rate of duty will be 7.5 percent ad valorem. If the quantitative limits of additional U.S. note 4 to chapter 21 have been reached, the product will be classified in subheading 2103.90.7800, HTSUS, and dutiable at the general rate of 30.5 cents per kilogram plus 6.4 percent ad valorem. In addition, products classified in subheading 2103.90.7800, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.21.01 to 9904.21.09, HTSUS.
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 https://hts.usitc.gov/current.
The rules for determining whether the spice mix products are to be considered an “originating good” of Canada and thus eligible for preferential tariff treatment under the provisions of the North American Free Trade Act are provided for in General Note 12 of the HTSUS, which provides, in relevant part, as follows:
(a) Goods in the territory of a party to the North American Free Trade Agreement (NAFTA) are subject to duty as provided therein. For the purposes of this note -
(a)(i) Goods that originate in the terrigory of a NAFTA party under subdivision (b) of this note and that qualify to be marked as goods of Canada under the terms of the marking rules set forth in regulations issued by the Secretary of the Treasury (whether or not the goods are marked), when such goods are imported into the customs territory of the United States and are entered under a subheading for which a rate of duty appears in the “Special” subcolumn followed by the symbol “CA” in parentheses, are eligible for such duty rate, in accordance with section 201 of the North American Free Trade Implementation Act.
* * *
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; or
(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; . . . .
Based on the facts provided, the goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b) (ii) (A). The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. That is, all of the ingredients are non-originating in the NAFTA Territory, however, they all meet the tariff shift required by General Note (GN) 12 (b)(ii)(A), and GN 12 (t)/21.7A(A) a change to mixed condiments or mixed seasonings of subheading 2103.90 from . . . any other chapter . . . . Therefore, the three spice mix products are eligible for preferential treatment under the NAFTA. The country of origin for customs duty purposes will be Canada.
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.
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.
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d) of the regulations, provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.
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.
An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the spice mix product by viewing the container in which it is packaged, the individual ingredients would be excepted from marking under this provision.
The mixed spices and sugar which are imported in containers that are marked in the manner described above, are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the mixed spices and sugar are imported and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for the imported mixed spices and sugar provided the port director is satisfied that the article will remain in the marked container until it reaches the ultimate purchaser.
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 of the regulations to the facts of this case, we find that the country of origin of the Cranberry Sauce Mix, Cinnamon Glazed Nut Spice Mix, and Savory Nut Spice Mix for marking purposes is Canada. That is, based on the facts provided, the rule of origin that applies is 19 Code of Federal Regulations 102.11 (a) (3) that states:
That the country of origin of a good is the country in which each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in š 102.20, and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.
The š 102.20 rule for chapter 21, HTSUS, subheading 2103.90, requires a change to subheading 2103.90 from any other subheading. All of the foreign materials incorporated in the three spice mix products of subheading 2103.90, HTSUS, undergo a change in tariff classification from the vegetables of subheading 0712.90, the spices of subheadings 0904.22, 0906.20, 0907.20, 0908.12, 0909.32, 0910.99, the sugars of 1701.12 and 1701.99, and the salt of 2501.00, HTSUS. Therefore, the three spice mix products for marking purposes is Canada, thus, they can be marked “product of”, or “made in” Canada.
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,
Steven A. Mack
Director
National Commodity Specialist Division