CLA-2-12:OT:RR:NC:N2:228
Yan An
Sunshine USA Produce Inc
2 North Road ,Suite 1 Warren, NJ 07059
RE: The country of origin of pumpkin seeds
Dear Ms. An:
In your letter dated April 4, 2023, you requested a country of origin ruling.
A description of the products, a manufacturing flowchart, and pictures accompanied your inquiry.
Two scenarios are described in your letter. In the first scenario, pumpkin seeds, products of China, will be imported into Mexico for processing. The work performed in Mexico is said to encompass dehulling (removing the shells), cleaning, and removing any foreign materials. The second scenario mirrors the first, except that the pumpkin seeds will be roasted and salted in Mexico. In both scenarios, the products will be then packaged and exported to the United States for sale.
COUNTRY OF ORIGIN AND MARKING:
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 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.
Section 134.1(b), CBP Regulations (19 CFR § 134.1(b)), defines "country of origin" as:
The country of manufacture, production, or growth of any article of foreign origin entering the United States. 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 the meaning of [the marking laws and regulations]; however, for a good of a NAFTA or USMCA country, the marking rules set forth in part 102 of this chapter (hereinafter referred to as the part 102 Rules) will determine the country of origin.
Section 134.1(j) of the regulations provides that the “Part 102 Rules” are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country as set forth in Part 102 of this Chapter. The rules also apply to determine the country of origin for marking purposes for goods imported under the USMCA.
Section 134.1(g) of the regulations defines a “good of a NAFTA or USMCA country” as an article for which the country of origin is Canada, Mexico or the United States as determined under the part 102 Rules.
Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA or USMCA country" may be marked with the name of the country of origin in English, French or Spanish.
Part 102, CBP Regulations (19 CFR Part 102), sets forth the NAFTA Rules of Origin for country of origin marking purposes. The pumpkin seeds, as described in scenarios 1 and 2, are not wholly obtained or produced, nor produced exclusively from domestic materials. Therefore, sections 102.11(a)(1) and (a)(2) do not apply to the facts presented in these scenarios. Because the analysis of sections 102.11(a)(1) and 102.11(a)(2) does not yield a country of origin determination, we look to section 102.11(a)(3).
Section 102.11(a)(3) provides that the country of origin is the country in which “each foreign material incorporated in that good undergoes an applicable change in tariff classification as set forth in 19 CFR 102.20 and satisfies any other applicable requirements of that section.” Each foreign material must be separately analyzed under 19 CFR 102.11(a)(3).
“Foreign material” is defined in Section 102.1(e) as “a material whose country of origin as determined under these rules is not the same country as the country in which the good is produced.”
“Domestic is defined in Section 102.1(d), as “a material whose country of origin as determined under these rules is the same country as the country in which the good is produced.”
The pumpkin seeds in scenario 1 are classified in subheading 1212.99.9200, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh, chilled, frozen or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included: Other: Other: Other.” The pumpkin seeds in scenario 2 are classified in subheading 2008.19.9090, HTSUS, which provides for Fruit, nuts and other edible parts of plants, otherwise prepared or preserved … Nuts, peanuts (ground-nuts) and other seeds … Other … Other …Other … Other.
Under the provisions of 19 CFR § 102.20, the Tariff shift rule for subheading 1212.99, HTSUS, provides as follows:
A change to heading 1209 through 1214 from any other chapter.
Since the pumpkin seeds are classified in heading 1212, HTSUS, the terms of the Tariff shift are not satisfied. Therefore, since the foreign material incorporated in scenario 1 does not undergo an applicable change in tariff classification as set forth in 19 CFR 102.20, the country of origin of the products cannot be determined pursuant to 19 CFR 102.11(a)(3). Because the analysis of sections 102.11(a)(1), 102.11(a)(2) and 102.11(a)(3) does not yield a country of origin determination, we look to section 102.11(b).
Section 102.11(b) states, in relevant part:
“Except for a good that is specifically described in the Harmonized System as a set, or is classified as a set pursuant to General Rule of Interpretation 3, where the country of origin cannot be determined under paragraph (a) of this section:
(1) The country of origin of the good is the country or countries of origin of the single material that imparts the essential character to the good, or…When determining the essential character of a good under 19 C.F.R. § 102.11, 19 C.F.R. § 102.18(b)(1) provides that only domestic and foreign materials that are classified in a tariff provision from which a change in tariff classification is not allowed under the § 102.20 specific rule or other requirements applicable to the good shall be taken into consideration.”
We find that the single material that imparts the essential character of the finished good in scenario 1 are the pumpkin seeds. Therefore, the pumpkin seeds may not be marked as goods of Mexico, but rather must be marked to indicate that they are products of the non-USMCA country from where they originate which in this case would be China.
With respect to scenario 2, under the provisions of 19 CFR § 102.20, the tariff shift rule for subheading 2008.19, HTSUS, provides as follows:
A change to subheading 2008.19 through 2008.99 from any other chapter, provided that the change is not the result of mere blanching of nuts.
However, the Chapter 20, HTSUS, Note provides:
Notwithstanding the specific rules of this chapter, fruit, nut and vegetable preparations of Chapter 20 that have been prepared or preserved merely by freezing, by packing (including canning) in water, brine or natural juices, or by roasting, either dry or in oil (including processing incidental to freezing, packing or roasting), shall be treated as a good of the country in which the fresh good was produced.
Accordingly, the pumpkin seeds originating from China appear to undergo the requisite tariff shift from Chapter 8, HTSUS, to subheading 2008.19.90, HTSUS. However, it remains to be determined whether they meet the additional test imposed by the Chapter 20 Note. Under this provision, when the seed preparations are prepared by roasting or processing “incidental” to roasting, then the origin of the nuts in their “fresh” state determines the origin of the good. The “fresh” state refers to the state of the nuts before they were roasted or processed in a manner incidental to roasting. Here, fresh pumpkin seeds from China are sent to Mexico for roasting and salting.
Based on the Chapter 20, Note the pumpkin seeds may not be marked as goods of Mexico, but rather must be marked to indicate that they are products of the non-USMCA country from where the fresh seeds were produced which in this case would be China.
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 and Border Protection 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, please contact National Import Specialist Timothy Petrulonis at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division