CLA-2-20:OT:RR:NC:N2:228
Ms. Misty G. Gibbins
Pacific Customs Brokers Inc.
1400 A Street,
Blaine, WA 98230
RE: The tariff classification and eligibility of the United States-Mexico-Canada Agreement (USMCA) of organic baby finger foods and teething biscuits from Canada
Dear Ms. Gibbins:
In your letter received by this office on June 29, 2021, you requested a binding ruling on the tariff classification and United States-Mexico-Canada Agreement (USMCA) eligibility of four varieties of organic baby finger foods and teething biscuits. An ingredients breakdown, narrative description of the manufacturing process and samples of the products accompanied your inquiry. The samples were examined and discarded.
The first product, “Blueberry Acai Rusks,” is described as a teething alternative that is said to contain organic red lentil decorticated flour (Product of USA), organic chickpea flour (Product of Canada), organic pea fiber (Product of Canada), apple juice (Product of USA), blueberry powder (Product of Canada), blueberry flavor (Product of Canada), spinach powder (Product of Germany, China, Hungary, or USA), and acai powder (Product of Brazil).
The second product, “Apple Sweet Potato Rusks,” is described as being designed for little mouths with a melt in your mouth texture. The product is said to contain organic red lentil decorticated flour (Product of USA), organic chickpea flour (Product of Canada), organic pea fiber (Product of Canada), apple juice (Product of USA), apple powder (Product of USA), and sweet potato powder (Product of USA).
The third product, “Carrot Sticks,” is described as plant-based carrot sticks that are full of protein, iron, vitamins and minerals as well as probiotics to support gut health. The product is said to contain organic red lentil decorticated flour (Product of USA), organic chickpea flour (Product of Canada), organic carrot powder (Product of Egypt or Italy), organic canola oil (Product of USA, Canada or the Netherlands), organic pea fiber (Product of Canada), ganeden BC30 probiotic (Product of USA), and organic onion powder (Product of China, Egypt or Italy).
The fourth product, “Sweet Pea Finger Foods,” is described as nourishing plant-based rings that will excite little snackers. The product is said to contain organic red lentil decorticated flour (Product of USA), organic chickpea flour (Product of Canada), sweet pea powder (Product of Poland or USA), organic canola oil (Product of USA, Canada, or the Netherlands), organic pea fiber (Product of Canada), and ganeden BC30 probiotic (Product of USA).
You state that all ingredients for each of the four aforementioned products will be shipped to Canada, where they will be processed into organic baby finger foods and teething biscuits. The processing of the finished products includes mixing the flours and pea fiber with water, extruding into rectangular, stick, or ring shapes, and cooking at temperatures between 160 to 175 degrees Celsius in order to achieve the status of “safe for human consumption.” Subsequent to being cooked, the products will be placed on a conveyer belt and air dried in a 5-layer continuous oven at temperatures ranging from 60 to 80 degrees Celsius for approximately 10 minutes. The Blueberry Acai Rusks and Apple Sweet Potato Rusks will be subjected to a second drying process using a 3-layer continuous oven at temperatures ranging from 95 to 115 degrees Celsius for approximately 10 minutes. The drying process is stated to reduce the moisture in the organic baby finger foods and teething biscuits in order to become a ready to eat, shelf stable product. The products are packaged for retail sale in 40-gram bags, neg weight.
Classification:
In your letter, you suggested that the products may be classified under subheading 1905.40.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa…rusks, toasted bread and similar toasted products. Alternatively, you suggested that the products may be classified under subheadings 1905.90.9030, HTSUS, or 1905.90.9090, HTSUS, which provides for “bread, pastry, cakes, biscuits and other bakers’ wares…other…other…corn chips, and similar crisp savory snack foods” or “bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa . . . other . . . other . . . other,” respectively. Based on the composition of the ingredients and our examination of the samples, the products will be classified elsewhere.
The applicable subheading for the products, “Blueberry Acai Rusks,” “Apple Sweet Potato Rusks,” “Carrot Sticks” and “Sweet Pea Finger Foods” will be 2005.99.9700, HTSUS, which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006 . . . other vegetables and mixtures of vegetables . . . other . . . other. The general rate of duty will be 11.2 percent ad valorem.
USMCA:
The USMCA was signed by the Governments of the United States, Mexico, and Canada on November 30, 2018. The USMCA was approved by the U.S. Congress with the enactment on January 29, 2020, of the USMCA Implementation Act, Pub. L. 116-113, 134 Stat. 11, 14 (19 U.S.C. § 4511(a)). General Note (“GN”) 11 of the HTSUS implements the USMCA. GN 11(b) sets forth the criteria for determining whether a good is an originating good for purposes of the USMCA. GN 11(b) states:
For the purposes of this note, a good imported into the customs territory of the United States from the territory of a USMCA country, as defined in subdivision (l) of this note, is eligible for the preferential tariff treatment provided for in the applicable subheading and quantitative limitations set forth in the tariff schedule as a “good originating in the territory of a USMCA country” only if—
the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
the good is a good produced entirely in the territory of one or more USMCA countries using non-originating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o)); or
Since the products, “Blueberry Acai Rusks,” “Carrot Sticks” and “Sweet Pea Finger Foods” contain non-originating ingredients, they are not considered a good wholly obtained or produced entirely in a USMCA country under GN 11(b)(i), nor is the product produced exclusively from originating materials per GN 11(b)(ii). Thus, we must determine whether the product qualifies under GN 11(b)(iii). As previously noted, the products are classified under subheading 2005.99.9700, HTSUS. The applicable rule of origin for goods classified under subheading 2005.99.9700, HTSUS, is in GN 11(o)/20.1, HTSUS, which provides “[a] change to headings 2001 through 2007 from any other chapter.
In this case, the Blueberry Acai Rusks, Carrot Sticks and Sweet Pea Finger Foods contain the following non-originating ingredients that need to undergo the tariff shift: Acai powder from Brazil, spinach powder, if sourced from Germany, China, or Hungary, organic canola oil, if sourced from the Netherlands, organic carrot powder, from Egypt or Italy, organic onion powder, from China, Egypt or Italy, and sweet pea powder, if sourced from Poland. Since the non-originating ingredients in the aforementioned products are all classified in a Chapter other than Chapter 20, HTSUS, the tariff shift rule is met. Therefore, the products, “Blueberry Acai Rusks,” “Carrot Sticks” and “Sweet Pea Finger Foods” are eligible for preferential tariff treatment under the USMCA.
Accordingly, the products, “Blueberry Acai Rusks,” “Carrot Sticks” and “Sweet Pea Finger Foods” classified under subheading 2005.99.9700, HTSUS, are an originating good pursuant to GN 11(o).
With respect to the product, “Apple Sweet Potato Rusks,” it is stated that all the above referenced ingredients are wholly obtained and produced entirely in a USMCA country. The subject merchandise, being wholly obtained or produced entirely in a USMCA country will meet the requirements of HTSUS, GN 11(b)(i). Accordingly, the product, “Apple Sweet Potato Rusks,” classified under subheading 2005.99.9700, HTSUS, is an originating good pursuant to GN 11(b)(i).
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.
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 Timothy Petrulonis at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division