CLA-2-12:OT:RR:NC:N2:N232

Ms. Ilana Green
Fresh Hemp Foods Ltd.
69 Eagle Dr
Winnipeg, MB R2R 1V4
Canada

RE: The Country of Origin and Marking for Hulled Hemp Seeds, Sterilized Hemp Seeds and Whole Hemp Seeds

Dear Ms. Green,

This is in response to your letter dated May 11, 2021, requesting a ruling on the classification and country of origin marking of "Hulled Hemp Seeds", "Sterilized Hemp Seeds" and "Whole Hemp Seeds".

"Hulled Hemp Seeds" are described as 100% hulled hemp seeds dehulled from whole hemp seeds (Product of USA). The product will be packed in both retail and bulk format: retail packs (0.9 ounces and 5 pounds) and bulk tote bags (25 pounds, 50 pounds and 2,000 pounds) which will be sold to the food industry upon importation.

"Sterilized Hemp Seeds" are described as 100% sterilized whole hemp seeds sterilized from whole hemp seeds (Product of USA). The product, which will be imported in bulk packs with a net weight of 50 pounds and 2,000 pounds, will be sold to the food industry for further processing.

"Whole Hemp Seeds" are described as 100% whole hemp seeds repacked from whole hemp seeds (Product of USA). The product, which will be imported in bulk packs with a net weight of 50 pounds and 2,000 pounds, will be sold to the food industry for further processing.

You state that each of the aforementioned products will be grown in the United States, shipped to Canada for dehulling, sterilization and packaging before being imported back into the United States.

Classification:

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).

The EN to Chapter 12, Harmonized Tariff Schedule of the United States (HTSUS), provides in pertinent part as follows:

The seeds and fruits covered by the headings may be whole, broken, crushed, husked or shelled. They may also have undergone moderate heat treatment designed mainly to ensure better preservation (e.g., by inactivating the lipolytic enzymes and eliminating part of the moisture), for the purpose of de-bittering or to facilitate their use. However, such treatment is permitted only if it does not alter the character of the seeds and fruits as natural products and does not make them suitable for a specific use rather than for general use.

The EN to Heading 1207 provides, in relevant part:

The heading covers, inter alia :

Hemp seeds

The "Hulled Hemp Seeds", "Sterilized Hemp Seeds" and "Whole Hemp Seeds" have been dehulled, sterilized and repacked. Such processing, pursuant to the language of the EN, will not preclude them from classification in Chapter 12, HTSUS. As directed by the ENs, the "Hulled Hemp Seeds", "Sterilized Hemp Seeds" and "Whole Hemp Seeds" are properly classified under heading 1207, HTSUS.

The applicable subheading for the "Hulled Hemp Seeds", "Sterilized Hemp Seeds" and "Whole Hemp Seeds" will be 1207.99.0360, HTSUS, which provides for Other oil seeds and oleaginous fruits, whether or not broken: Other: Other: Hemp seed: Other. The general rate of duty will be free.

Country of Origin

The marking statute, Section 304(a), Tariff Act of 1930, as amended (19 U.S.C. 1304(a)), provides that unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940).

To allow for a more seamless transition period, at this time, CBP continues to utilize the marking rules set forth in 19 C.F.R. Part 102, with the exception of 19 C.F.R. 102.19, for purposes of country of origin marking with respect to goods 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. Applied in sequential order, the required hierarchy establishes that:

The country of origin of a good is the country in which:

(a)(1) The good is wholly obtained or produced; (a)(2) The good is produced exclusively from domestic materials; or (a)(3) 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.

Sections 102.11(a)(1) and 102.11(a)(2) do not apply to the facts presented in this case because all three hemp seeds products are neither wholly obtained nor produced exclusively from "domestic" (Canada, in this case) materials. Accordingly, we look to section 102.11(a)(3). The applicable tariff shift requirement in section 102.20 for the hemp seeds of subheading 1207.99, HTSUS, consist of the following:

A change to heading 1201 through 1207 from any other chapter.

In this instance, the whole hemp seeds from the United States are classified in subheading 1207.99, HTSUS, therefore, the tariff shift rule in 19 C.F.R. 102.20 is not satisfied. Consequently, 19 C.F.R. 102.11(b) of the hierarchical rules must be applied to determine the country of origin of three hemp seeds products

Section 102.11(b) provides that:

Except for a good that is specifically described in the Harmonized System as a set, or is classified as a set pursuant to General Rule of Interpretation 3, the country of origin cannot be determined under paragraph (a) of this section:

The country of origin of the good is the country or countries of origin of the single material that imparts the essential character to the good.

Since there is only one material, the whole hemp seeds provide the essential character, which was produced in the United States. Accordingly, pursuant to 19 C.F.R. 102.11(b)(1), the country of origin for marking purposes of all three products is the United States.

Please note that the question of whether the goods may be marked with a phrase such as "Product of U.S.A." is under the jurisdiction of the U.S. Federal Trade Commission, Bureau of Consumer Protection, Division of Enforcement, which may be contacted for advice at 600 Pennsylvania Avenue N.W., Washington, D.C. 20580, or through the FTC's website at http://www.ftc.gov.

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.

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 Frank Troise at frank.l.troise.cbp.dhs.gov.


Sincerely,

Steven A. Mack
Director
National Commodity Specialist Division