CLA-2-21:OT:RR:NC:N2:228
Ms. Terry Harman
Livingston International Inc.
5090 Explorer Drive, Suite 400
Mississauga, Ontario L4W4T9
Canada
RE: The country of origin and status under the North American Free Trade Agreement (NAFTA) of Real Coconut Whipped Cream from Canada; Article 509
Dear Ms. Harman:
In your letter dated October 2, 2014, on behalf of Gay Lea Foods Co-operative Ltd, Canada, you requested a ruling on the status of Real Coconut Whipped Cream from Canada under the NAFTA and a NAFTA country of origin determination.
An ingredients breakdown and product specification sheets accompanied your inquiry. Additional information was provided via e-mail correspondence dated October 15, October 16, and October 17, 2014. Real Coconut Whipped Cream, Spec 1415 is said to be a refrigerated, white-colored, smooth and creamy product packed in pressurized cans. The product is composed of approximately 48-56 percent coconut cream (coconut extract, water, and xanthan gum), 16-20 percent water, 12-14 percent high fructose corn syrup, 12-14 percent glucose syrup, 4 percent nitrous oxide, and less than one percent each of carrageenan gum, mono- and diglycerides.
The coconut cream is a product of Indonesia. In Indonesia, the coconut cream is produced by pressing raw coconut meat, centrifuging the resulting liquid to separate the cream from the oil, adding water and xanthan gum, and undergoing UHT (Ultra High Temperature or Ultra Heating Treatment) process. The water, high fructose corn syrup, and glucose syrup are products of Canada. The nitrous oxide, mono- and di-glycerides are products of the United States. The carrageenan gum is produced in Denmark. In Canada, all ingredients are mixed to make the Real Coconut Whipped Cream.
While we agree with you that when imported into the United States, the Real Coconut Whipped Cream will be classified in subheading 2106.90.9980, Harmonized Tariff Schedule of the United States (HTSUS), the provision for food preparations not elsewhere specified or included ... other ... other cream or milk substitutes; we cannot agree with you that the coconut cream, when imported in Canada, is classified in subheading 2008.99, HTSUS, which provides for fruit ... otherwise prepared or preserved ... not elsewhere specified or included. Based on the manufacturing process and ingredient composition, the coconut cream will be classified in subheading 2106.90, HTSUS, as other food preparations not elsewhere specified or included.
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; ...
Based on the facts provided, the merchandise does not qualify for preferential treatment under the NAFTA because none of the above requirements are met.
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, CBP Regulations (19 C.F.R. 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 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 CBP Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, CBP Regulations. The marking requirements of these goods are set forth in Part 134, CBP 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.
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.
Section 134.35(b) states that a good of a NAFTA country which is to be processed in the United States in a manner that would result in the good becoming a good of the United States under the NAFTA Marking Rules is excepted from marking. Unless the good is processed by the importer or on its behalf, the outermost container of the good shall be marked in accord with this part.
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 country of origin of the Real Coconut Whipped Cream for marking purposes is Indonesia.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 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 Bruce N. Hadley, Jr. at [email protected].
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, Regulations & Rulings, 90 K Street N.E. – 10th floor, Washington, DC 20229-1177.
Sincerely,
Gwenn Klein Kirschner
Director
National Commodity Specialist Division