CLA-2-19:OT:RR:NC:N5:228
Sheri Lawson
Willson International Inc
160 Wales Ave, Ste. 100 Tonawanda, NY 14150
RE: The tariff classification and eligibility of the United States-Mexico-Canada Agreement (USMCA) of a breakfast sandwich wrap.
Dear Ms. Lawson:
In your letter dated January 14, 2025, you requested a binding ruling on the tariff classification, country of origin, and the United States-Mexico-Canada Agreement (USMCA) eligibility of a breakfast sandwich wrap on behalf of your client, Eat-In Foods Inc.
An ingredients breakdown, manufacturing flowchart, bill of materials and a picture of the product accompanied your inquiry.
The subject merchandise, “Spinach, Feta & Sun-Dried Tomato Wrap,” is described as a breakfast sandwich wrap filled with egg whites, feta cheese and sun-dried tomatoes wrapped in baked lavash bread. The sandwich wrap will be made in Canada. The product will be imported frozen, for retail sale, in 29.1-ounce (825-gram) packages. Each package will contain five individually sealed breakfast wraps weighing 5.82 ounces (165 grams).
The breakfast wraps are said to contain baked wheat lavash (USA), egg patty (Canada & USA), cream cheese (Canada), skim milk powder (Canada), oregano (Turkey), onion powder (India), red hot chili (India), paprika (China), garlic powder (China), black pepper (Vietnam, Indonesia), tomato fillet (USA), salt (Canada), tomato puree-full red (USA), whey protein isolate (USA), citric acid (China), modified corn starch (USA), spinach (Greece), sun dried tomato (USA, Mexico and/or India), feta cheese (Canada) and water (Canada).
Classification:
The applicable subheading for the product, “Spinach, Feta & Sun-Dried Tomato Wrap,” will be 1905.90.1049, Harmonized Tariff schedule of the United States Annotated (HTSUSA), which provides for bread, pastry cakes, biscuits and other bakers’ wares, whether or not containing cocoa…other… bread, pastry, cakes, biscuits and similar baked products ... frozen ... other. The general rate of duty will be free.
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 at https://hts.usitc.gov/current.
Country of Origin:
Section 134.1(b), CBP regulations (19 C.F.R. § 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.
Pursuant to section 102.0, interim regulations, related to the marking rules, tariff-rate quotas, and other USMCA provisions, published in the Federal Register on July 6, 2021 (86 FR 35566), the rules set forth in sections 102.1 through 102.18 and 102.20 determine the country of origin for marking purposes with respect to good imported from Canada and Mexico. Section 102.11 provides a required hierarchy for determining the country of origin of a good for marking purposes, with the exception of textile and apparel goods which are subject to the provisions of 19 C.F.R. § 102.21. See 19 C.F.R. § 102.11.
Applied in sequential order, 19 C.F.R. § 102.11(a) provides that the country of origin of a good is the country in which:
(1) The good is wholly obtained or produced;
(2) The good is produced exclusively from domestic materials; or
(3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in Part 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.
The subject merchandise is neither “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 this case because the breakfast wraps are neither wholly obtained nor produced exclusively from domestic materials. 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). The subject merchandise is classified under subheading 1905.90.1049, HTSUS. The applicable tariff shift requirement in Part 102.20 for the subject merchandise of heading 1905, HTSUS, consists of the following: “A change to heading 1905 from any other heading.”
The breakfast wraps contain the following non-originating ingredients that need to undergo the tariff shift: oregano (Turkey), onion powder (India), red hot chili (India), paprika (China), garlic powder (China), black pepper (Vietnam, Indonesia), citric acid (China), spinach (Greece), and sun-dried tomato (when sourced from India). Because the non-originating materials contained in the subject merchandise are classified external to heading 1905, HTSUS, the tariff shift rule in Part 102.20 is met. Therefore, in accordance with 19 C.F.R. § 102.11(a)(3), the country of origin of the breakfast wraps for marking purposes is Canada.
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-
(i) the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
(ii) the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
(iii) 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 breakfast wraps 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 product is classified under subheading 1905.90.1049, HTSUS. The applicable rule of origin for goods classified under subheading 1905.90.1049, HTSUS, is in GN 11(o)/19.11, HTSUS, which provides: “A change to heading 1905 from any other chapter.”
In this case, the breakfast wraps contain the following non-originating ingredients that need to undergo the tariff shift: oregano (Turkey), onion powder (India), red hot chili (India), paprika (China), garlic powder (China), black pepper (Vietnam, Indonesia), citric acid (China), spinach (Greece), and sun-dried tomato (when sourced from India). Since the non-originating ingredients in the product are all classified in a Chapter other than Chapter 19, HTSUS, the tariff shift rule is met. Therefore, the breakfast wraps are an eligible good for preferential tariff treatment under the USMCA.
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.
The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (C.F.R.), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and submit a request for a new ruling in accordance with 19 C.F.R. § 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.
This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection Regulations (19 C.F.R. Part 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