CLA-2-20:OT:RR:NC:N5:228
Yunming Gu
Wismettac Asian Foods, Inc.
13409 Orden Dr Santa Fe Springs, CA 90670-6336
RE: The tariff classification and country of origin of pickled garlic from China
Dear Mr. Gu:
In your letter dated September 25, 2023, you requested a tariff classification and country of origin determination ruling.
An ingredients breakdown, manufacturing flowchart, and a sample of the product accompanied your inquiry. The sample and documentation received with your request was forwarded to the Custom and Border Protection Laboratory for review. That review is now complete. We apologize for the delay in the issuance of this ruling.
The subject merchandise, pickled garlic, is described as a side dish that complements a variety of Asian-style meals. Examination of the sample found garlic cloves in a clear bag mixed in a liquid that was brownish in color. Pickled garlic will be imported in the dry state in 454 gram bags, packed 20 bags per carton, and sold mainly to the food service industry.
Pickled garlic is said to contain 67 percent garlic, 8 percent high fructose liquid sugar, 8 percent protein hydrolysate, 6 percent soy sauce, 6 percent water, 2 percent salt, 2 percent sodium L-glutamate, 1 percent brewed vinegar and trace amounts of caramel pigment, lactic acid, potassium sorbate, citric acid, and red pepper.
CBP Laboratory Report NY20231500 found the sample contained 0.46 0.02 percent total acid and 0.49 0.02 percent nonvolatile acid on an as-is basis. Non-volatile acids were the only types of acid present and no acetic acid or vinegar was detected.
The product is said to be prepared by growing and harvesting garlic in China. All other ingredients, manufacturing and processing operations are said to occur in Japan. The manufacturing flowchart depicts a scenario in which the raw material is washed, desalinated, boiled/cooled, sorted, pickled, mixed, subjected to a solid-liquid separation, measured, bagged, tested, sterilized and packaged for export to the U.S.
Pickling/mixing is described as the process of putting garlic in brine containing vinegar, alcohol, soy sauce and the other ingredients. Ripening is described as the process of fully immersing the garlic in brine for at least 4 days until the garlic softens. Solid-liquid separation is the process of loading the garlic with brine onto a mesh net and draining the brine. As a result, the garlic will remain in the mesh net and the brine will be collected in a jar. Sterilization is described as the process of putting the food into a high-temperature pressure sterilizer, at a temperature of 90 degrees Celsius for 25 to 30 minutes.
The applicable subheading for the pickled garlic will be 2005.99.9700, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006other vegetables and mixtures of vegetables... otherother. The general rate of duty will be 11.2 percent ad valorem.
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.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 2005.99.9700, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 2005.99.9700, HTSUS, listed above.
The HTSUS, is subject to periodic amendment, so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, including information on exclusions and their effective dates, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
As defined in 19 CFR 134.1(b), country of origin means 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 change the country of origin of the article. A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. A substantial transformation will not result from a minor manufacturing or combining process that leaves the identity of the article intact. See United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940); and National Juice Products Association v. United States, 628 F. Supp. 978 (Ct. Int'l Trade 1986).
In NY K81363, dated November 28, 2003, U.S. Customs and Border Protection (CBP) has previously ruled that garlic bulbs grown in China, Spain, Chile, and Argentina that underwent processing that included separation into cloves in Columbia, subsequent to peeling, and packing for retail sale, did not result in a substantial transformation.
In N326044, dated June 8, 2022, CBP ruled that fresh garlic bulbs that were placed in a fermenter, toasted, and mixed with 2 percent rice hull were not substantially transformed as a result of the processing in South Africa. The final product, a black garlic seasoning, would remain a product of the country where the bulbs were grown, which in this case was Spain.
In N308973, dated February 24, 2020, beans were said to be grown in the U.S. where they were harvested, shelled and shipped to Japan. In Japan the beans were mixed, cleaned, soaked in water with salt and vinegar, boiled and steamed. CBP ruled that the processing of the beans in Japan did not effect a substantial transformation.
With the exception of coffee, CBP has consistently held that roasting and processing similar to roasting is not a substantial transformation. See, N008056, dated March 16, 2007 (shelled cashews roasted and canned is not a substantial transformation); and G89921, dated June 12, 2001 (dried beans and chickpeas rehydrated, blanched, canned, covered with hot (180 F) brine, sealed, cooked in a rotary cooker for over 15 minutes at 260 F, cooled, labeled, and packed did not undergo a substantial transformation).
In the present case, fresh garlic bulbs are grown and harvested in China. The garlic is then sent to Japan where it is said to be washed, desalinated, boiled/cooled, sorted, pickled and mixed with the other ingredients, subjected to a solid-liquid separation, measurement, bagging, testing, sterilization and packaging for export to the U.S. Accordingly, the pickled garlic is not substantially transformed as a result of the processing in Japan. The pickled garlic will remain a product of the country where the bulbs were grown, which in this case is China.
The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and submit a request for a new ruling in accordance with 19 CFR 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.
This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection Regulations (19 C.F.R. 177).
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.
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 Timothy Petrulonis at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division