CLA-2-22:OT:RR:NC:N2:235
Mr. Brian Kavanaugh
Deringer Logistics Consulting Group
173 West Service Road
Champlain, NY 12919
RE: The tariff classification and country of origin determination for Apple Cider Vinegar Pearls from Canada
Dear Mr. Kavanaugh:
In your letter dated July 7, 2012, on behalf of your client, Pomdial, Inc., you requested a tariff classification and country of origin determination ruling. Your second letter in response to a request for additional information was received by this office on August 24, 2012.
The sample of Apple Cider Vinegar Pearls that accompanied the ruling submission is a small plastic sachet filled with orange colored, spherical soft gel beads. The product is composed of cider vinegar (70%), water (25.7%), cellulose gum, calcium chloride, sodium alginate and potassium sorbate in varying amounts that add up to less than 5%. The acetic acid content is 5%. You have stated that the product will be marketed as a food condiment for use in salads.
The applicable subheading for the Apple Cider Vinegar Pearls will be 2209.00.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for vinegar and substitutes for vinegar obtained from acetic acid. The rate of duty will be 0.6 cents per proof liter.
Based on the facts provided, the goods described above do not qualify for NAFTA preferential treatment, because they will not meet the requirements of HTSUS General Note 12(b)(t) in conjunction with the other requirements stated in the agreement. General Note 12(l) states that: (l) Transshipment. A good shall not be considered to be an originating good by reason of having undergone production that satisfies the requirements of this note if, subsequent to that production, the good undergoes further production or any other operation outside the territories of the NAFTA parties, other than unloading, reloading or any other operation necessary to preserve it in good condition or to transport the good to the territory of Canada, Mexico and/or the United States.
Therefore, based on the above language we find that the encapsulation and processes performed in a non-NAFTA Country constitutes an “other operation” which renders the subject product ineligible for NAFTA preferential treatment.
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/.
You also requested a determination of the country of origin for the Apple Cider Vinegar Pearls.
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, Customs Regulations (19 CFR 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 North American Free Trade Agreement ("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 Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs 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. 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 102.11 of the regulations to the facts of this case, we find that the Apple Cider Vinegar Pearls are goods of Canada for marking purposes.
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 Paul Hodgkiss at (646) 733-3046.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division