CLA-2-20:OT:RR:NC:N2:228
Ms. Cari N. Stinebower
Winston & Strawn LLP
1901 L Street, NW
Washington, DC 20036
RE: The tariff classification and eligibility of the United States-Mexico-Canada Agreement (USMCA) of food preparations from Canada
Dear Ms. Stinebower:
In your letter dated January 11, 2022, you requested a binding ruling on the tariff classification and United States-Mexico-Canada Agreement (USMCA) eligibility of five food preparations.
An ingredients breakdown, detailed description of each ingredient, and representative images of two of the products accompanied your inquiry.
Product Nos. CHO48722, CHO52362, CHO56199, FAG53554, and CHO52365 are described as food preparations that will be used mainly as ingredients for yogurt and desserts. They are said to have a puree-like consistency with fruit pieces. The images provided depict small chunks of the characteristic fruit in a semi-viscous liquid.
You state that manufacturing operations will occur in Canada. The food preparations will be subjected to a pasteurization process and are said to be comprised of a combination of ingredients including, but not limited to cold water, hot water, fruit juice, cane sugar, pectin, locust bean gum, calcium lactate, sodium lactate, IQF fruit, fruit puree, and/or fruit pulp. Subsequent to pasteurization, the food preparations will be aseptically packaged and imported in a refrigerated condition in bulk, 800L, stainless steel totes.
Product No. CHO48722 is said to contain hot water (Canada), 18 percent cane sugar (Canada), oligofructose (Canada), 17 percent 10mm IQF strawberry (Europe, Morocco), cold water (Canada), 8 percent 6mm IQF strawberry (Europe, Morocco), pectin (Germany), lemon juice concentrate (Spain, South Africa, or the United States), locust bean gum (Switzerland), natural flavoring (United States), food coloring (Italy), and calcium lactate (Europe).
Product No. CHO52362 is said to contain 35 percent cane sugar (Canada), hot water (Canada), 15 percent aseptic raspberry puree seedless (Poland, Serbia, Belgium, Spain, Ukraine), cold water (Canada), 5 percent raspberry crumble sorted (Serbia), pectin (Germany), locust bean gum (Switzerland), food coloring (Italy), natural raspberry flavoring with other natural flavors (United States), sodium lactate (Brazil, Spain, United States, Netherlands, Thailand), calcium lactate (Europe), and natural flavoring (United States).
Product No. CHO56199 is said to contain cold water (Canada), 30 percent cane sugar (Canada), 20 percent aseptic peach puree (Spain), hot water (Canada), pectin (Germany), natural flavoring (United States), guar gum (Netherlands), locust bean gum (Switzerland), concentrated carrot, pumpkin and apple (Netherlands), natural flavoring (Canada), concentrated paprika and carrot (Netherlands), and calcium lactate (Europe).
Product No. FAG53554 is said to contain 30 percent aseptic peach pulp 5mm (Spain), 20 percent aseptic peach puree (Europe), oligofructose (Europe), cold water (Canada), hot water (Canada), 7 percent cane sugar (Canada), corn starch (United States, France, Hungary), natural flavoring (Canada), natural flavoring (United Kingdom), lemon juice concentrate (Spain, South Africa or the United States), and pectin (Denmark).
Product No. CHO52365 is said to contain 35 percent cane sugar (Canada), 20 percent 6mm aseptic pineapple (Philippines, Thailand), hot water (Canada), 16 percent 6mm aseptic pineapple crushed (Philippines, Thailand, Kenya), cold water (Canada), pectin (Germany), pineapple juice concentrate (Kenya), liquid pineapple flavor (Canada), locust bean gum (Switzerland), sodium lactate (Brazil, Spain, United States, Netherlands, Thailand), calcium lactate (Europe), and turmeric (United States).
Classification:
In your letter, you suggested that the products may be classified under subheadings 2106.90.9500, 2106.90.9700, and 2106.90.9897, Harmonized Tariff Schedule of the United States (HTSUS),which provide for food preparations not elsewhere specified or included, depending on the percentage of sugar by dry weight. Based on the composition of the ingredients, detailed descriptions of each ingredient, and the processing operations provided, the five food preparations will be classified elsewhere.
The applicable subheading for product No. CHO48722 will be 2008.80.8000, HTSUS, which provides for fruit … otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included … strawberries. The general rate of duty will be 11.9 percent ad valorem.
The applicable subheading for product No. CHO52362 will be 2008.99.2120, HTSUS, which provides for fruit … otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter … not elsewhere specified or included … other … other … berries … other … red raspberries. The general rate of duty will be 4.5 percent ad valorem.
The applicable subheading for product Nos. CHO56199 and FAG53554 will be 2008.70.2040, HTSUS, which provides for fruit … otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit … peaches, including nectarines … peaches … other. The general rate of duty will be 17 percent ad valorem.
The applicable subheading for product No. CHO52365 will be 2008.20.0010, HTSUS, which provides for fruit…otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included…pineapples…containing cane and/or beet sugar. The general rate of duty will be 0.35 cents per kilogram.
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 food preparations 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 are the products 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 food preparations are classified under subheadings 2008.80.8000, 2008.99.2120, 2008.70.2040, and 2008.20.0010, HTSUS. The applicable rule of origin for goods classified under subheading 2008.80.8000, 2008.99.2120, 2008.70.2040, and 2008.20.0010, HTSUS, is in GN 11(o)/20.3, HTSUS, which provides “[a] change to subheadings 2008.19 through 2008.99 from any other chapter.”
Product Nos. CHO52362, CHO56199, FAG53554, and CHO52365 each contain non-originating ingredients classified in Chapter 20; specifically, aseptic raspberry puree seedless, aseptic peach puree, and aseptic pineapple. Therefore, product Nos. CHO52362, CHO56199, FAG53554, and CHO52365 do not meet the tariff shift rule and are not eligible for preferential tariff treatment under the USMCA.
Product no. CHO48722 is said to contain the following non-originating ingredients that need to undergo the tariff shift: 10mm IQF strawberry, 6mm IQF strawberry, pectin, locust bean gum, lemon juice concentrate (if imported from Spain or South Africa), food coloring and calcium lactate. Since the non-originating ingredients are all classified in a Chapter other than Chapter 20, the tariff shift rule is met. Accordingly, product no. CHO48722 is eligible for preferential tariff treatment under the USMCA.
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