OT:RR:CTF:FTM H315384 MJD

Ms. Sheri G. Lawson
Willson International Inc.
160 Wales Avenue, Suite 100
Tonawanda, New York 14150-2508

RE: Tariff Classification of Frozen Roasted Vegetable Primavera Meal Kit; USMCA; Country of Origin Marking

Dear Ms. Lawson,

This is in response to your correspondence, dated October 20, 2020, in which you requested a binding ruling, on behalf of Premier Marine USA Inc., ("Premier Marine"), concerning the tariff classification under the Harmonized Tariff Schedule of the United States ("HTSUS"), eligibility for preferential tariff treatment under the United States-Mexico-Canada Agreement ("USMCA"), and country of origin for marking purposes of a frozen roasted vegetable primavera meal kit. Your request was forwarded to this office from the National Commodity Specialist Division for review. Our ruling is set forth below.

FACTS:

The merchandise is a frozen roasted vegetable primavera meal kit with three pouches. One marinara sauce pouch, one gluten free cooked pasta pouch, and one pouch of primavera vegetable blend of roasted red pepper, zucchini, and carrot. The prepackaged marinara sauce pouch, prepackaged pasta pouch, and prepackaged primavera vegetable blend pouch are all USMCA originating goods. These pouches are received at the facility in Canada, where each pouch is placed in a master pouch, and packaged in a master carton for shipment to the United States. All of the ingredients in the pasta meal kit are partially cooked or cooked and require further cooking by the consumer prior to consumption. Below is a list of the ingredients, as well as the country of origin, the percentage, and classification of each ingredient in the frozen roasted vegetable primavera meal kit[1]:

|Ingredients: |Origin: |Percentage of |HTSUS: | | | |final product: | | |Marinara sauce |Canada |39.70% |2103.20.40 | |Gluten free penne pasta, cooked |Canada |32.50% |1902.30.00 | |Primavera vegetable blend |Canada |27.80% |2004.90.85 |

The directions for the frozen roasted vegetable primavera meal kit instruct the user to thaw the sauce pouch under water for 5 to 10 minutes, add the thawed sauce to a skillet, and combine with the vegetables and pasta.

ISSUES:

1) What is the tariff classification of the pasta meal kit?

2) Whether the pasta meal kit imported into the United States from Canada is eligible for preferential tariff treatment under the USMCA?

3) What is the country of origin of the pasta meal kit for marking purposes?

LAW AND ANALYSIS:

1) Tariff Classification

Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation ("GRI"). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.

GRI 3 provides, in pertinent part, the following:

When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

a) The heading which provides the most specific description shall be preferred to headings providing a more general description....

b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character....

c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The 2021 HTSUS provisions under consideration are as follows:

1902: Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared:

1902.19: Other:

1902.19.4000: Other, including pasta packaged with sauce preparations. . .

1902.30.00: Other pasta. . . Other: 1902.30.0040: Frozen. . .

* * * * *

In understanding the language of the HTSUS, the Explanatory Notes ("EN") of the Harmonized Commodity Description and Coding System may be utilized. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).

The EN to GRI 3(b) state, in pertinent part:

VI) This second method relates only to:

i) Mixtures.

ii) Composite goods consisting of different materials.

iii) Composite goods consisting of different components.

iv) Goods put up in sets for retail sales.

It applies only if Rule 3(a) fails.

VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

[. . .]

X) For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

c) are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).

"Retail sale" does not include sales of products which are intended to be re-sold after further manufacture, preparation, repacking or incorporation with or into other goods.

The term "goods put up in sets for retail sale" therefore only covers sets consisting of goods which are intended to be sold to the end user where the individual goods are intended to be used together. For example, different foodstuffs intended to be used together in the preparation of a ready-to-eat dish or meal, packaged together and intended for consumption by the purchaser would be a "set put up for retail sale".

The EN to GRI 3(b) further provide the following example of a set that can be classified by reference to GRI 3(b):

[. . .]

b) Sets, the components of which are intended to be used together in the preparation of a spaghetti meal, consisting of a packet of uncooked spaghetti (heading 19.02), a sachet of grated cheese (heading 04.06) and a small tin of tomato sauce (heading 21.03), put up in a carton:

Classification in heading 19.02.

* * *

The frozen roasted vegetable primavera meal kit is a food preparation that is a set per GRI 3(b). According to the EN to GRI 3(b) sets have three characteristics. First, a set "consist of at least two different articles which are, prima facie, classifiable in different headings." Second, a set consist of "products or articles put up together to meet a particular need or carry out a specific activity." Third, a set is "put up in a manner suitable for sale directly to end users without repacking." In the instant case, the pasta meal kit consists of at least two articles, a marina sauce pouch, a gluten free cooked penne pasta pouch, and a primavera vegetable blend pouch. Next, the pasta meal kit contains pouches of various ingredients that are packaged together, the contents of which are meant to be combined and cooked in a skillet and served as a meal. Lastly, the pasta meal kit is imported to the United States from Canada where it is sold to retailers for use by consumers without being repackaged. Thus, the frozen roasted vegetable primavera meal kit is a set per GRI 3(b).

GRI 3(b) provides that goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character. The term "essential character" is not defined within the HTSUS, GRI, or EN. However, EN VIII to GRI 3(b) gives guidance, stating that, "[T]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the good." When classifying foods preparations that are sets per GRI 3(b), the essential character of the set will be determined on a case-by-case basis. However, most often, the essential character of a food preparation that is a set per GRI 3(b) and contains a grain product, and no protein, will be the grain. The grain product is the component of the food preparation that lends to the identity of the product more so than any other component in the meal kit.

For example, the EN to GRI 3(b) includes an example of a spaghetti meal that is classified in heading 1902, HTSUS, because the spaghetti imparts the essential character to the set. Similarly, in Headquarters Ruling Letter ("HQ") 950891, dated March 26, 1992, the product, "Kamameshi," was described as a savory rice meal which included a retail package containing a rice packet, soup packet and either an eel, mushroom or bamboo shoot packet. The product was determined to meet the requirements of a set in accordance to EN X to GRI 3(b), and was classified in subheading 1006.30.10, HTSUS, with the rice imparting the essential character. In the instant case, the essential character of the frozen roasted vegetable primavera meal kit is the gluten free penne pasta. The gluten free pasta is what makes the meal kit a pasta meal, and what distinguishes the pasta meal kit from other types of meal kits, such as ones that contain chicken, beef, rice, etc. Therefore, the frozen roasted vegetable primavera meal kit is classified in subheading 1902.30.00, HTSUS, which provides for "[p]asta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Other pasta."

2) USMCA

The United States-Mexico-Canada Agreement ("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 nonoriginating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o)); or

...

Since all of the items included in the meal kit are USMCA originating, the pasta meal kit is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials under GN 11(b)(ii). Therefore, the frozen roasted vegetable primavera meal kit would be eligible for preferential tariff treatment under the USMCA.

3) Country of Origin Marking

To allow for a more seamless transition period, at this time, CBP continues to utilize the marking rules set forth in 19 C.F.R. Part 102, with the exception of 19 C.F.R. 102.19, for purposes of country of origin marking with respect to goods 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 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, the required hierarchy establishes that the country of origin of a good is the country in which:

(a)(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 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.

The pasta meal kit is not a good wholly obtained or produced pursuant to section 102.11(a)(1). The next step under the hierarchy is to consider whether the country of origin may be determined according to section 102.11(a)(2). Under section 102.11(a)(2), the origin of the good may be based on the origin of the materials used to produce the good, provided the good is produced exclusively from domestic materials. Section 102.1(d), Customs Regulations (19 C.F.R. 102.1(d)), defines domestic material 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." Since the pasta meal kit is a good packaged in Canada with only goods that are domestic i.e. Canadian, it meets the requirements of section 102.11(a)(2). Accordingly, the country of origin for marking purposes of the frozen roasted vegetable primavera meal kit is Canada.

HOLDING:

By application of GRI 3(b), the frozen roasted vegetable primavera meal kit is classified in heading 1902, HTSUS, specifically, subheading 1902.30.0040, HTSUSA ("Annotated"), which provides for "[p]asta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Other pasta: Other: Frozen." The general rate of duty will be 6.4% ad valorem.

Based on the information provided the frozen roasted vegetable primavera meal kit is eligible for preferential tariff treatment under the USMCA.

The country of origin marking of the frozen roasted vegetable primavera meal kit is Canada.

Please note that 19 C.F.R. 177.9(b)(1) provides that "[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based."

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.


Sincerely,

Yuliya A. Gulis, Chief
Food, Textiles and Marking Branch
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[1] You classified the gluten free penne pasta in subheading 1902.19.20, HTSUS, and the primavera vegetable blend in subheading 0710.90.91, HTSUS. We have found that the correction classification for the gluten free penne pasta is in subheading 1902.30.00, HTSUS, and the correct classification for the primavera vegetable blend is in subheading 2004.90.85, HTSUS.

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