CLA-2-15:RR:NC:SP:232 D81052
Mr. Jim Wickstead
PBB Global Logistics
434 Delaware Ave.
Buffalo, NY 14202
RE: The tariff classification and status under the North
American Free Trade Agreement (NAFTA), of various fish oils
from Canada; Article 509
Dear Mr. Wickstead:
In your letter dated July 31, 1998 you requested a ruling on
the status of various fish oils from Canada under the NAFTA.
Your request also asks for the country of origin for marking
purposes of the products.
Information and samples were submitted with your initial
request dated April 16, 1998. The subject merchandise consists
of five types of oil: Cod Liver Oil, Tuna Oil, Salmon Oil, Shark
Liver Oil and Fish Oil (18/12). The Cod Liver oil has a total
Omega-3 content of 25 percent plus 2500 IU of Vitamin A, 200 IU
of Vitamin D and mixed natural tocopherols (Vitamin E) added as
an antioxidant. The Tuna Oil has an Omega-3 content of 35
percent plus mixed natural tocopherols (Vitamin E) added as an
antioxidant. The Salmon Oil has an Omega-3 content of 20 percent
plus mixed natural tocopherols (Vitamin E) added as an
antioxidant. The Shark Liver oil contains a minimum of 20
percent alkyglycerols plus mixed natural tocopherols (Vitamin E)
as an antioxidant. The Fish Oil (18/12) has a total Omega-3
content of 35 percent plus mixed natural tocopherols (Vitamin E)
added as an antioxidant.
With the exception of the Salmon Oil, which is produced in
Canada, all of the oils are manufactured in Norway, and shipped
to Canada in large drums. The submitted flow charts indicate
that all of the oils are submitted to the processes of refining,
winterization, bleaching, deodorization, mixing and drumming.
The bulk oils are sent from Norway to Canada, where the only
processing performed is mixing with the tocopherols,
encapsulating into gelatin capsules and bottling in retail
packaging for shipment to the United States. The oils are sold
in health food stores as nutritional supplements.
The applicable tariff provision for the Cod Liver Oil will
be 1504.10.2000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provided for Fats and oils, and their
fractions, of fish or marine mammals, whether or not refined, but
not chemically modified: Fish-liver oils and their fractions:
Cod. The general rate of duty will be free.
The applicable tariff provision for the Tuna and Salmon Oils
will be 1504.20.6040, HTS, which provides for Fats and oils, and
their fractions, of fish or marine mammals, whether or not
refined, but not chemically modified...Fats and oils and their
fractions, of fish, other than liver oils...other...other. The
general rate of duty will be 1.5 cents per kilogram plus 5
percent ad valorem.
Your inquiry does not provide enough information for us to
give a classification ruling on the Shark Liver Oil and Fish Oil
(18/12). For the Shark Liver Oil, your request for a
classification ruling should include information on the
alkyglycerols including their chemical structure, source,
function in the oil, and chemical effect on the oil. It is also
noted that the process flow chart does not show this ingredient
added to the oil. For the Fish Oil (18/12) indicate the type(s)
of fish used to make this product, and whether the oils are from
the fish liver.
The Cod Liver Oil is not subject to treatment under the
NAFTA because the general rate of duty is free and there is no
NAFTA rate shown in the Special column of the Harmonized Tariff
Schedules.
The Tuna Oil does not qualify for preferential treatment
under the NAFTA because one or more of the non-originating
materials used in the production of the good will not undergo the
change in tariff classification required by General Note
12(t)/15, HTSUSA.
The Salmon Oil, being wholly obtained or produced entirely
in the territory of Canada, will meet the requirements of HTSUSA
General Note 12(b)(i), and will therefore be entitled to a free
rate of duty under the NAFTA upon compliance with all applicable
laws, regulations, and agreements.
This ruling is being issued under the provisions of Part 181
of the Customs Regulations (19 C.F.R. 181).
Your inquiry also requests a ruling on the country of origin
marking requirements for imported articles which are processed in
a NAFTA country prior to being imported into the U.S. Marked
samples were submitted with your letter for review.
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.
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.
The marking requirements of these goods are set forth in Part
134, 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. (Emphasis added).
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.
You state that the imported fish oil products are processed
in a NAFTA country "Canada" prior to being imported into the U.S.
Since, "Canada" is defined under 19 CFR 134.1(g), as a NAFTA
country, we must first apply the NAFTA Marking Rules in order to
determine whether the imported fish oil products are goods of a
NAFTA country", and thus subject to the NAFTA marking
requirements.
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
imported Salmon Oil is a good of "Canada" for marking purposes,
since it satisfies the requirements of Section 102.11(a)(1).
Applying the NAFTA Marking Rules set forth in Part 102 of
the regulations to the facts of this case, we find that the
imported Cod Liver Oil and Tuna Oil are goods of "Norway" for
marking purposes, noting Section 102.11(b)(1). Therefore, the
submitted samples, which show "Product of Canada" are not legally
marked. These products must show "Product of Norway" as the
country of origin.
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 John
Maria at 212-466-5730.
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
Service, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division