CLA-2-21:OT:RR:NC:N5:228
Byung Wan Lee
JangBaek Customs Attorney
4F, 24, Dosandaero38, Kangnam
Seoul 06049
South Korea
RE: The tariff classification, country of origin, marking and eligibility for preferential tariff treatment under
the United States-Korea Free Trade Agreement of a prepared vegetable from China.
Dear Mr. Lee:
In your letter dated June 30, 2025, you requested a ruling on the tariff classification, country of origin,
marking and eligibility for preferential tariff treatment under the United States-Korea Free Trade Agreement
on behalf of your client, Banchandanji Co., LTD.
An ingredients breakdown, a description of the manufacturing process, in addition to a picture of the product
and an example of the product labeling accompanied your inquiry.
The subject merchandise is described as Kimchi which consists of oval-shaped napa cabbage with a red and
spicy seasoning carefully worked into each leaf, allowing the flavors to fully meld. The product is said to
contain salted napa cabbage (China), radish (Korea), anchovy fish sauce (Korean anchovy-based liquid
fermented jeotgal) (Korea), red pepper powder (China), frozen garlic (China), sugar (Korea), ginger (Korea),
glutinous rice flour (Korea), refined salt (Korea), and monosodium glutamate (Korea). The product is first
packed in a plastic pouch (inner packaging) with a net weight of 10kg. (22 pounds) and then placed in a
plastic container for refrigerated transport to the United States.
The product is manufactured in South Korea by first preparing the seasoning which consists of chopping the
radish, garlic and ginger, mixing with water and glutinous rice flour, boiling, cooling and combining with red
pepper powder and other ingredients. Next, the seasoning is thoroughly mixed by hand with the salted napa
cabbage subsequent to being transferred to a storage room where it undergoes fermentation so that the
seasoning is absorbed in the cabbage layers. The seasoned product is stored in sealed containers to prevent
contact with outside air for the fermentation process to finish. This process takes approximately 1 to 7 days to
complete when maintained at temperatures between 0–10°C.
CLASSIFICATION
The applicable subheading for the product 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 2006…other vegetables and mixtures of vegetables...
other…other. The general rate of duty will be 11.2 percent ad valorem.
Effective March 4, 2025, pursuant to U.S. Note 2(u) to Subchapter III, Chapter 99, all products of China and
Hong Kong as provided by heading 9903.01.24, HTSUS, other than products classifiable under headings
9903.01.21, 9903.01.22, and 9903.01.23, HTSUS, will be subject to an additional 20 percent ad valorem rate
of duty. At the time of entry, you must report the applicable Chapter 99 heading, i.e. 9903.01.24, in addition
to subheading 2005.99.9700, HTSUS, listed above.
Effective April 5, 2025, Executive Orders implemented “Reciprocal Tariffs.” All imported merchandise must
be reported with either the Chapter 99 provision under which the reciprocal tariff applies or one of the
Chapter 99 provisions covering exceptions to the reciprocal tariffs. At this time products from all countries,
including China, will be subject to an additional 10 percent ad valorem rate of duty. At the time of entry, you
must report the Chapter 99 heading applicable to your product classification, i.e. 9903.01.25, HTSUS, in
addition to subheading 2005.99.9700, HTSUS, listed above.
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.
The tariffs and additional duties cited above are current as of this ruling’s issuance. 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 at https://hts.usitc.gov/.
COUNTRY OF ORIGIN AND MARKING
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), 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 its container) will permit, in such a manner as to
indicate to the 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 the 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.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940).
Part 134 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 CFR 134) implements the
country of origin marking requirements and exceptions of 19 U.S.C. 1304.
Section 134.1(b), CBP Regulations (19 CFR 134.1(b)), defines “country of origin” 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 the marking laws and regulations.
A substantial transformation occurs when, as a result of manufacturing, a new and different article emerges,
having a distinct name, character or use, which is different from that originally possessed by the article or
material before being subjected to the manufacturing process. See United States v. Gibson-Thomsen Co.,
Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940).
In your request you have stated that through the mixing of vegetables and seasoning sauce, along with
additional processing in South Korea, the product undergoes a transformation in its physical characteristics,
resulting in kimchi that is entirely different from the original raw materials. We disagree. Based on the
description of the product, narrative description of the manufacturing process, and picture of the finished
product provided, the county of origin of the instant food product will be China.
In N348683, dated June 5, 2025, olives from Spain and Greece subjected to further processing which
included fermentation, brining, pitting and stuffing with ingredients, was determined to not effect 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 rice hull were not substantially transformed as a result of the processing in South Africa. The
final product, a black garlic seasoning, remained 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 to undergo soaking in water with salt and vinegar, boiling/steaming. CBP ruled
that the processing in Japan did not effect a substantial transformation.
With respect to the instant food product, it is said to be produced in South Korea by mixing a seasoning blend
composed of radish, anchovy sauce, red pepper powder, garlic, sugar, glutinous rice powder, salt, and
monosodium glutamate (MSG) with Chinese-origin salted napa cabbage and fermenting it. The
manufacturing processes performed in South Korea would not effect a substantial transformation. In short,
the process begins with cabbage and ends with cabbage. Accordingly, the kimchi will be considered a
product of the country in which the cabbage is grown and harvested, which in this case is China.
A photo described as an example of the same type of container with labeling was furnished on July 24, 2025.
The proposed labeling states “PRODUCT OF SOUTH KOREA,” in large white font against a black
background. This appears below the ingredients panel, net weight and manufacturing/expiration date
information. Additionally, in your letter, you proposed the product is eligible to be marked as “Made in
Korea” or “Product of Korea.” The proposed marking of “Made in Korea” or “Product of Korea,” or "Product
of South Korea,” will not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, and
would not be an acceptable country of origin marking for the imported product. However, the location of
where the proposed marking appears as described above is acceptable. Accordingly, the product label must
be marked in a conspicuous place as legible, indelible and permanent, as the nature of the containers will
permit to indicate that the product is "Made in," "Product of," or other words of similar meaning, China, in
order satisfy the requirements of 19 CFR 134 and 19 U.S.C. 1304.
United States-Korea Free Trade Agreement (UKFTA).
General Note 33, Harmonized Tariff Schedule of the United States (HTSUS), sets forth the criteria for
determining whether a good is originating under the UKFTA. General Note 33(b), HTSUS, states, in
pertinent part, as follows:
For the purposes of this note, subject to the provisions of subdivisions (c), (d), (n) and (o) thereof, a good
imported into the customs territory of the United States is eligible for treatment as an originating good of a
UKFTA country under the terms of this note if–
(i) the good is wholly obtained or produced entirely in the territory of Korea or of the United States, or both;
(ii) the good is produced entirely in the territory of Korea or of the United States, or both, and-- (A) each of
the non-originating materials used in the production of the good undergoes an applicable change in tariff
classification specified in subdivision (o) of this note; or (B) the good otherwise satisfies any applicable
regional value-content or other requirements set forth in such subdivision (o); and satisfies all other
applicable requirements of this note and of applicable regulations; or
(iii) the good is produced entirely in the territory of Korea or of the United States, or both, exclusively from
materials described in subdivisions (i) or (ii), above.
For the purposes of this note, the term “UKFTA country” refers only to Korea or to the United States.
Since the product contains non-originating components (napa cabbage (China), red pepper powder (China)
and frozen garlic (China), it would not be considered a good wholly obtained or produced entirely in a
UKFTA country under GN 33(i). Thus, we must determine whether the product qualifies under GN 33(ii).
As previously noted, the product is classified under subheading 2005.99.9700, HTSUS. GN 33 (o)/ Chapter
20/ Rule 1 states: “A change to headings 2001 through 2007 from any other chapter, except as provided for in
chapter rule 1 for chapter 20 and except from heading 0701.”
In this case, since the napa cabbage (China), red pepper powder (China) and frozen garlic (China), are
classified in a Chapter other than Chapter 20, HTSUS, the tariff shift rule is met. Therefore, the product is an
eligible good for preferential tariff treatment under the UKFTA.
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.
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 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 Timothy Petrulonis at [email protected].
Sincerely,
(for)
James Forkan
Acting Director
National Commodity Specialist Division