CLA-2-38:OT:RR:NC:N3:140
Misty Gibbins
Pacific Customs Brokers Inc.
1400 A ST
Blaine, WA 98230
RE: The tariff classification, country of origin, marking, and eligibility of the United States-Mexico-Canada Agreement (USMCA) status of a cat deterrent from Canada
Dear Ms. Gibbins:
In your letter dated May 15, 2023, you requested a ruling regarding tariff classification, marking, country of origin and United States Mexico Canada Agreement (“USMCA”) preference eligibility for Skeddader, Natural Cat Deterrent, on behalf of Skeddader Inc.
The subject product is called Skeddader, Natural Cat Deterrent. You indicate that the product consists of two ingredients: rosemary oil and rosemary plant paste. The rosemary oil is the sole active ingredient. The rosemary oil and rosemary paste are the byproducts of an extractive manufacturing process in Canada from plants grown in Morocco. The ingredients described as rosemary oil and dry herbaceous plant material are blended together, packed for retail, then packed in cartons for shipment to the U.S. Skeddader, Natural Cat Deterrent is sold in ready to use condition and put up for sale in retail containers.
Classification:
By application of GRI 1, Skeddader, Natural Cat Deterrent is classified in heading 3808.99.9501, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): Other: Containing any aromatic or modified aromatic pesticide: other: other… The rate of duty will be 5 percent ad valorem.
Country of Origin:
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.
The "country of origin" is defined in 19 CFR § 134.1(b) as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. 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 the meaning of this part; however, for a good of a NAFTA or USMCA country, the marking rules set forth in part 102 of this chapter (hereinafter referred to as the part 102 Rules) will determine the country of origin.”
Pursuant to section 102, interim regulations, related to the marking rules, tariff-rate quotas, and other USMCA provisions, published in the Federal Register on July 6, 2021 (86 FR 35566), the rules set forth in §§ 102.1 through 102.18 and 102.20 determine the country of origin for marking purposes with respect to goods imported 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: (a) the country of origin of a good is the country in which:
The good is wholly obtained or produced;
The good is produced exclusively from domestic materials; or
Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20 and satisfies any other applicable requirements of that section, and all other requirements of these rules are satisfied.)
After a manufacturing process in Canada which extracts oil from plants grown in Morocco classified under heading 1211, vegetable by-products (rosemary oil and paste) are classified under heading 1404, HTSUS and are products of Canada.
The Skeddader, Natural Cat Deterrent under review is neither “wholly obtained or produced” nor “produced exclusively from domestic materials.” Therefore, 19 C.F.R. § 102.11(a)(1) and 102.11(a)(2) do not apply to the facts presented in this case. Accordingly, we look to section 102.11(a)(3). The applicable tariff shift requirement in section 102.20 for the Natural Cat Deterrent classified in subheading 3808.99, HTSUS, consists of the following:
A change to subheading 3808.99 from any other subheading, except from rodenticides or other pesticides classified in Chapter 28 or 29 or subheading 3808.52 through 3909.59. Based on the information provided, Skeddader, meets the terms of the tariff shift rule in 19 C.F.R. § 102.20. Therefore, in accordance with 19 C.F.R. § 102.11(a)(3), the country of origin is conferred in Canada.
USMCA Determination:
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. 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))
GN11 Chapter 38 Note 2 states, “a change to subheadings 3808.50 through 3808.99 from any other, including another subheading within that group, provided that not less than 50 percent by weight of the total active ingredient or ingredients is originating.”
The non-originating material meets the terms of the tariff shift. Based on the information provided, the Skeddader, Natural Cat Deterrent qualifies for USMCA preferential treatment because it meets the requirements of USMCA HTSUS GN 11(b)(iii). The merchandise will therefore be entitled to a free rate of duty under USMCA upon compliance with all applicable laws, regulations, and agreements.
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/.
This merchandise may be subject to the requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which is administered by the U.S. Environmental Protection Agency (EPA), Office of Pesticide Programs. Information on the FIFRA can be obtained by calling the EPA at (202) 260-2090, or by visiting their website at www.epa.gov.
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, please contact National Import Specialist Evan Thomas at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division