CLA-2-16:RR:NC:2:231 M85884

Mr. Marc A. Romano
Trade & Compliance Services
PBB Global Logistics
670 Young Street
Tonawanda, NY 14150

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of HighLiner brand “Captain’s Cut” Asian Shrimp with Vegetables from Canada; Article 509

Dear Mr. Romano:

In your letter dated July 21, 2006, on behalf of your client, HighLiner Foods, Inc., you requested a ruling on the status of HighLiner brand “Captain’s Cut” Asian Shrimp with Vegetables from Canada under the NAFTA.

The product in question will be imported frozen in retail paperboard boxes weighing 10 ounces each, net. The box will contain two sealed, clear plastic pouches. One pouch, weighing 6 ounces, net, will contain raw, peeled and deveined shrimp, coated with a sauce. The sauce is described as a Teriyaki sauce (containing water, soy sauce, brown sugar, vinegar, sugar, modified corn starch, tomato paste, salt, dehydrated garlic, caramel color, lemon juice concentrate, spices, potassium sorbate and sodium benzoate), water, canola oil, garlic, lemon juice concentrate, spice, sodium tripolyphosphate, salt and sodium bisulfite. The second pouch, weighing 4 ounces, net, will contain a mixture of raw vegetables.

Regarding the shrimp, these are said to be farm-raised shrimp, imported into Canada from China as frozen, peeled and deveined shrimp, packaged in 30 pound, net, bulk cartons with plastic liners, and said to be entered in subheading 0306. In Canada, the shrimp are said to be further processed, first, by immersion in a hot water bath to remove their protective ice water glaze. The tempered shrimp are then reglazed with a coating of the flavoring sauce, after which they are moved through a spiral freezer. The refrozen coated shrimp are then weighed and packed into clear, poly-formed bags, holding 6 ounces, net, of product. Finally, the bags are heat sealed, and ready to be packaged for retail sale, along with the vegetables, in the paperboard boxes.

The sauce, used in coating the frozen shrimp, will be sourced in Canada, with various countries of origin. The sauce ingredients are said to comprise 2 percent, or less, of the total value of the product.

The vegetables in the product are purchased from a Canadian supplier, already blended according to HighLiner Inc.’s specifications, packed, frozen, in 30 pound master bags. The vegetables included in this mixture include, on a percent by weight basis, whole snap peas from China (23 percent), carrot sticks from Canada (10 percent), broccoli florets from Mexico (20 percent), diced onions of U.S. origin (15 percent), sliced water chestnuts from China (15 percent) and red pepper strips of U.S. origin (17 percent). At the manufacturing site, the master bags are emptied out onto the production line and then weighed out in 4-ounce lots. The lots of mixed vegetables are packed and sealed in clear, airtight, poly-formed bags, and are then ready to be packaged, together with the coated shrimp, in the retail paperboard boxes.

This combination of the shrimp pouch, a prepared shrimp product of chapter 16, and the vegetable pouch, frozen mixed vegetables of chapter 7, will be under General Rule of Interpretation (GRI) 3, as a set. In our opinion, the coated shrimp imparts the essential character to this product. Accordingly, classification will be in heading 1605, the provision for crustaceans, molluscs and other aquatic invertebrates, prepared or preserved. Within that heading, the combination of shrimp and vegetables, put up together to provide the consumer with a meal of shellfish with vegetables, would be classified as a “prepared meal.”

The applicable tariff provision for HighLiner brand “Captain’s Cut” Asian Shrimp with Vegetables will be 1605.20.0510, Harmonized Tariff Schedule of the United States (HTSUS), which provides for crustaceans, molluscs and other aquatic invertebrates, prepared or preserved, shrimps and prawns: products containing fish meat; prepared meals, in airtight containers, imported in accordance with Statistical Note 1 to this chapter. The general rate of duty will be 5 percent of the value.

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 World Wide Web at http://www.usitc.gov/tata/hts/.

NAFTA.

Regarding eligibility for NAFTA preference for goods imported from Canada General Note 12(a)(i), HTSUS, notes, in relevant party, that NAFTA preference is available to “[g]oods that originate in the territory of a NAFTA party under the terms of subdivision (b) of this note and that qualify to be marked as goods of Canada under the terms of the marking rules set forth in the regulations issued by the Secretary of the Treasury (without regard to whether the goods are marked), …

a) Origination:

With regard to the origination of such goods, General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or Based on the facts provided, both the coated shrimp pouch and the vegetable pouch are originating goods under the NAFTA regulations, because each component will meet the requirements of HTSUS General Note 12(b)(ii)(A).

b) Marking:

With regard to marking, country of origin, note that 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 to 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.

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 “Captain’s Cut” Asian Shrimp with Vegetables” is a good of Canada, China, Mexico and the United States for marking purposes.

Based on the foregoing, we find that both components in “Captain’s Cut” Asian Shrimp with Vegetables are originating goods under General Note 12(b). However, under the Rules of Origin, applicable to goods imported from a NAFTA territory, the vegetable component is not eligible to be marked as a product of Canada, but of Canada and three other countries. Accordingly, this product does not meet the marking requirement set out in GN 12(a), and does not qualify for preferential treatment under the NAFTA.

Goods that are deemed products of the United States fall outside the scope of Section 134 of the Customs marking regulations (See 19 C.F.R. 134.11). Whether,--or, in what manner,-- the instant product may be marked to indicate the U.S. origin of certain components is an issue that falls within the authority of the Federal Trade Commission (FTC), and inquiries regarding appropriate marking in this regard must be referred to that agency, either electronically or to the mailing address provided for on their website, www.ftc.gov:

Federal Trade Commission 600 Pennsylvania Avenue, N.W. Washington, D.C. 20580 Also, please note that additional marking may be required for the frozen shrimp, should they be subject to the Mandatory Country of Origin Labeling (COOL) requirements in Part 60 in Title 7, Code of Federal Regulations (7 C.F.R. 60, Country of Origin labeling for fish and shellfish). As these labeling requirements are administered by the U.S. Department of Agriculture, we suggest that you contact that agency for advice on your proposed marking. You may submit your inquiry by email to the following address cool@usda.gov

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 181 of the Customs Regulations (19 CFR Part 181).

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 Thomas P. Brady at 646-733-3030.

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 and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,
National Commodity
Specialist Division