CLA-2-21:OT:RR:NC:N2:231
TARIFF: 2105.00.3000; 2105.00.4000
Ms. Amy Hosking
Righteous Gelato Ltd
221 19 Street SE
Calgary, AB T2E 7M2
Canada
RE: The tariff classification and eligibility of the United States-Mexico-Canada Agreement (USMCA) of Gelato from Canada
Dear Ms. Hosking:
In your letter dated January 18, 2022, you requested a binding ruling on the eligibility of Gelato under the United States-Mexico-Canada Agreement (USMCA).
You presented seven items for review as follows:
Sea Salted Caramel Gelato is composed of milk, cream, granulated cane sugar, stabilizers (locust bean gum, guar gum), low heat skim milk powder, rice syrup solids, sea salt, natural caramel flavor and caramelized sugar syrup.
Earl Grey Lavender London Fog Gelato is composed of milk, cream, granulated cane sugar, stabilizers (locust bean gum, guar gum), low heat skim milk powder, rice syrup solids, Earl Grey tea powder, lavender natural flavor, vanilla extract, vanilla bean seeds and purple carrot juice concentrate.
Cookies and Cream Gelato is composed of milk, cream, granulated cane sugar, stabilizers (locust bean gum, guar gum), low heat skim milk powder, rice syrup solids, sea salt, vanilla extract and chocolate cookies.
Mint Chocolate Stracciatella is composed of milk, cream, granulated cane sugar, stabilizers (locust bean gum, guar gum), low heat skim milk powder, rice syrup solids, natural mint flavor, natural green flavor and chocolate flakes.
Vanilla Bean Gelato is composed of milk, cream, granulated cane sugar, stabilizers (locust bean gum, guar gum), low heat skim milk powder, rice syrup solids, vanilla extract and vanilla bean seeds.
Coffee Coffee Coffee Gelato is composed of milk, cream, granulated cane sugar, stabilizers (locust bean gum, guar gum), low heat skim milk powder, rice syrup solids, freeze dried coffee and sea salt.
Dark Chocolate Caramel Sea Salt Gelato is composed of milk, cream, granulated cane sugar, stabilizers (locust bean gum, guar gum), low heat skim milk powder, rice syrup solids, cocoa, black cocoa and sea salt.
You state that the ingredients for each item are mixed, heated, cooled, frozen, and packaged in retail sized plastic containers that hold a net weight of 562 milliliters.
Classification:
The applicable subheading for the above-described Gelato will be 2105.00.3000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: “Ice cream and other edible ice, whether or not containing cocoa: Other: Dairy products described in additional U.S. Note 1 to chapter 4: Described in additional U.S. Note 10 to chapter 4 and entered pursuant to its provisions.” The rate of duty is 20 percent ad valorem.
The applicable subheading for the above-described Gelato, if entered after tariff-rate quota has closed, will be 2105.00.4000, HTSUS. This provides for: “Ice cream and other edible ice, whether or not containing cocoa: Other: Dairy products described in additional U.S. Note 1 to chapter 4: Other.” The rate of duty is 50.2 cents per kilogram plus 17 percent ad valorem. Products classified in subheading 2105.00.4000 are also subject to additional safeguard duties based on their value, as described in subheadings 9904.04.50 - 9904.05.01.
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 the World Wide Web at https://hts.usitc.gov/current.
USMCA:
The 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 goods. 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—
the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
the good is a good produced entirely in the territory of one or more USMCA countries using non-originating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o));
In this instance, the seven flavors of Gelato contain the following non-originating ingredients that need to undergo the tariff shift: Cane Sugar (Argentina, Belize, Brazil, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Paraguay), Locust Bean (Italy, Spain), Guar Gum/Rice Syrup Solids (India), Earl Grey Tea Powder (India/Sri Lanka), Vanilla Extract/Vanilla Bean Seeds (Madagascar, Africa, Indonesia), Purple Carrot Juice (France), Natural Green Color/Chocolate Flakes (Netherlands), Freeze Dried Coffee (Colombia), Cocoa/Black Cocoa (West Africa).
Since the various flavors of Gelato contain non-originating ingredients, they are not considered a good wholly obtained or produced entirely in a USMCA country under GN 11(b)(i), nor are the products produced exclusively from originating materials per GN 11(b)(ii). Thus, we must determine whether the product qualifies under GN 11(b)(iii). The various flavors of Gelato are classified under subheadings 2105.00.3000 (low tariff rate quota) and 2105.00.4000 (high tariff rate quota), HTSUS, which provides for: “Ice cream and other edible ice, whether or not containing cocoa: Other: Dairy products described in additional U.S. Note 1 to chapter 4: Described in additional U.S. Note 10 to chapter 4 and entered pursuant to its provisions.”
Since the various flavors of Gelato are classified under subheading 2105.00, HTSUS, the applicable rule of origin is in GN 11(o)/21.10, HTSUS, which provides: A change to heading 2105 from any other heading, except from chapter 4 or tariff items 1901.90.32, 1901.90.33, 1901.90.34,1901.90.36, 1901.90.38, 1901.90.42 or 1901.90.43. Being that the non-originating ingredients in the various flavors of Gelato are all classified in a Chapter other than Chapter 4, HTSUS, or tariff items 1901.90.32, 1901.90.33, 1901.90.34, 1901.90.36, 1901.90.38, 1901.90.42 or 1901.90.43, HTSUS, the tariff shift rule is met.
Based on the facts provided, the goods described above qualify for USMCA preferential tariff treatment, because they will meet the requirements of HTSUS General Note 11(b)(iii).
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.
Importations of this merchandise are subject to regulations administered by various U.S. agencies. Requests for information regarding applicable regulations administered by the U.S. Department of Agriculture (USDA) may be addressed to that agency at the following location:
USDA
APHIS, VS, NCIE
Products Program
4700 River Road, Unit 40
Riverdale, MD 20737-1231
Tel: (301) 851-3300
E-mail: [email protected]
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
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 Ekeng Manczuk at ekeng.b.manczuk.cbp.dhs.gov.
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division