CLA-2-19:OT:RR:NC:N2:228
Mr. James Corpstein
J.R. Simplot Company
999 Main Street, Suite 1300
Boise, ID 83702
RE: The tariff classification, country of origin, and marking of Organic Quinoa and Kale Blend; Article 509
Dear Mr. Corpsteim:
In your letter dated September 29, 2014, you requested a ruling on classification, country of origin, and marking of Organic Quinoa and Kale Blend.
Descriptive literature accompanied your letter. A marked sample was not provided with your letter for review. Organic Quinoa and Kale Blend consists of 63.5 percent cooked and IQF frozen quinoa, 34.5 percent blanched and IQF frozen kale, 1 percent each of extra virgin olive oil and seasoning. The quinoa originating in Bolivia is imported into Canada, where it is cooked and IQF frozen. The cooked and frozen quinoa is subsequently imported into the United States, where it is combined with blanched and frozen kale, extra virgin olive oil and seasoning. The blanched kale and seasoning are products of the United States. The extra virgin olive oil is a product of Tunisia or Argentina.
In your letter, you requested a binding ruling on the tariff classification, country of origin, and marking of the finished product, the Organic Quinoa and Kale Blend.
The applicable tariff provision for the Organic Quinoa and Kale Blend (assuming in frozen condition) will be 1904.90.0120, Harmonized Tariff Schedule of the United States (HTSUS), which provides for cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included … other … frozen.
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.
In order to determine the country of origin marking requirements we must first apply the NAFTA Marking Rules in order to determine whether the imported cooked and frozen quinoa “is a good of a NAFTA country,” prior to being further processed in the U.S.
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 cooked, frozen quinoa is a product of Canada prior to being further processed in the U.S because it undergoes an applicable tariff shift pursuant to 19 C.F.R. §102.11(a)(3) and 19 C.F.R. §102.20(d).
Since the cooked frozen quinoa that will be imported is a good of a NAFTA country (Canada) when imported into the United States, the country of origin marking requirements of the finished product, the Organic Quinoa and Kale Blend, will be based on the determination of whether the processing in the United States would cause the final product to be of United States origin pursuant to the NAFTA Marking Rules. To make this determination, a similar hierarchical analysis of the “NAFTA Marking Rules” must be undertaken. In this case, the items to be analyzed include the quinoa of Canadian origin and the addition of the United States origin kale and seasoning, and non-NAFTA country origin of the extra virgin olive oil.
Applying the NAFTA Marking Rules to the Canadian quinoa and the processing to be performed in the United States, no determination of country of origin can be made under section 102.11(a) of the regulations. The finished product, Organic Quinoa and Kale Blend, is neither wholly obtained or produced in a single country as is provided under section 102.11(a)(1) nor is the finished product produced exclusively from domestic materials (i.e. U.S.) as provided under section 102.11(a)(2). Section 102.11(a)(3) also does not provide a country of origin determination because the imported quinoa does not undergo an applicable tariff shift pursuant to 19 C.F.R. §102.11(a)(3) and 19 C.F.R. §102.20(d). The imported quinoa is classified under subheading 1904.90, HTSUS, and the finished blend is also classified under subheading 1904.90, HTSUS. The tariff shift requirements for subheading 1904.90 are not met, which requires a change to subheading 1904.90 from any other heading.
Since an analysis of section 102.11(a) does not yield a country of origin determination, the analysis turns to section 102.11(b) which focuses on an examination of the single material that imparts the essential character of the good to determine the country or countries of origin of the Organic Quinoa and Kale Blend. Section 102.18(b)(1) of the regulations provides that only materials (domestic and foreign) that do not undergo a tariff shift are to be taken into consideration in determining the essential character of a good. We find that the imported quinoa imparts the essential character of the finished blend. Therefore, the country of origin for marking purposes would be Canada. Accordingly, as the processing in the United States does not result in Organic Quinoa and Kale Blend becoming a good of the United States under the NAFTA Marking Rules, the section 134.35(b) exception from the country of origin marking requirements does not apply.
As provided in section 134.41(b), CBP Regulations (19 C.F.R. 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.
In section 134.1(k), CBP Regulations (19 C.F.R. 134.1(k)), “Conspicuous” means capable of being easily seen with normal handling of the article or container.
With regard to the permanency of marking, section 134.41(a), CBP Regulations (19 C.F.R. 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, CBP Regulations (19 C.F.R. 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
In this case, the product may be marked “Product of Canada” or similar language in a conspicuous place as legibly, indelibly and permanently as the nature of its container will permit.
This ruling is being issued under the provisions of Part 181 of the CBP 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].
Sincerely,
Gwenn Klein Kirschner
Director
National Commodity Specialist Division