U.S. Customs and Border Protection
◆
[CBP Dec. 15–09]
WESTERN HEMISPHERE TRAVEL INITIATIVE:
DESIGNATION OF AN APPROVED NATIVE AMERICAN
TRIBAL CARD ISSUED BY THE SENECA NATION OF
INDIANS AS AN ACCEPTABLE DOCUMENT TO DENOTE
IDENTITY AND CITIZENSHIP FOR ENTRY IN THE UNITED
STATES AT LAND AND SEA PORTS OF ENTRY
AGENCY: U.S. Customs and Border Protection, DHS.
ACTION: Notice.
SUMMARY: This notice announces that the Commissioner of U.S.
Customs and Border Protection is designating an approved Native
American Tribal Card issued by the Seneca Nation of Indians to U.S.
and Canadian citizens as an acceptable travel document for purposes
of the Western Hemisphere Travel Initiative. The approved card may
be used to denote identity and citizenship of Seneca Nation of Indians
members entering the United States from contiguous territory or
adjacent islands at land and sea ports of entry.
DATES: This designation will become effective on July 13, 2015.
FOR FURTHER INFORMATION CONTACT: Arthur A. E.
Pitts, Director, Traveler Policies Division, Admissibility and
Passenger Programs, Office of Field Operations, U.S. Customs and
SUPPLEMENTARY INFORMATION:
Background
The Western Hemisphere Travel Initiative
Section 7209 of the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA), Public Law 108–458, as amended, required the
Secretary of Homeland Security (Secretary), in consultation with the
Secretary of State, to develop and implement a plan to require U.S.
citizens and individuals for whom documentation requirements have
previously been waived under section 212(d)(4)(B) of the Immigration
1
and Nationality Act (8 U.S.C. 1182(d)(4)(B)) to present a passport or
other document or combination of documents as the Secretary deems
sufficient to denote identity and citizenship for all travel into the
United States. See 8 U.S.C. 1185 note. On April 3, 2008, the Depart-
ment of Homeland Security (DHS) and the Department of State
promulgated a joint final rule, effective on June 1, 2009, that imple-
mented the plan known as the Western Hemisphere Travel Initiative
(WHTI) at U.S. land and sea ports of entry. See 73 FR 18384 (the
WHTI land and sea final rule). It amended, among other sections of
the Code of Federal Regulations (CFR), 8 CFR 212.0, 212.1, and
235.1. The WHTI land and sea final rule specifies the documents that
U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and
Mexico are required to present when entering the United States at
land and sea ports of entry.
Under the WHTI land and sea final rule, one type of citizenship and
identity document that may be presented upon entry to the United
States at land and sea ports of entry from contiguous territory or
adjacent islands
1
is a Native American Tribal Card that has been
designated as an acceptable document to denote identity and citizen-
ship by the Secretary, pursuant to section 7209 of IRTPA. Specifically,
8 CFR 235.1(e), as amended by the WHTI land and sea final rule,
states:
Upon designation by the Secretary of Homeland Security of a
United States qualifying tribal entity document as an acceptable
document to denote identity and citizenship for the purposes of en-
tering the United States, Native Americans may be permitted to
present tribal cards upon entering or seeking admission to the United
States according to the terms of the voluntary agreement entered
between the Secretary of Homeland Security and the tribe. The Sec-
retary of Homeland Security will announce, by publication of a notice
in the Federal Register, documents designated under this para-
graph. A list of the documents designated under this paragraph will
also be made available to the public.
A ‘‘United States qualifying tribal entity’’ is defined as a ‘‘tribe,
band, or other group of Native Americans formally recognized by the
United States Government which agrees to meet WHTI document
standards.’’
2
Native American tribal cards are also referenced in 8
CFR 235.1(b) which lists the documents U.S. citizens may use to
establish identity and citizenship when entering the United States.
See 8 CFR 235.1(b)(7).
1
“Adjacent islands” is defined in 8 CFR 212.0 as “Bermuda and the islands located in the
Caribbean Sea, except Cuba.” This definition applies to 8 CFR 212.1 and 235.1.
2
See 8 CFR 212.0. This definition applies to 8 CFR 212.1 and 235.1.
2
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
The Secretary has delegated to the Commissioner of U.S. Customs
and Border Protection (CBP) the authority to designate certain docu-
ments as acceptable border crossing documents for persons arriving
in the United States by land or sea from within the Western Hemi-
sphere, including certain United States Native American tribal cards.
See DHS Delegation Number 7105 (Revision 00), dated January 16,
2009.
Tribal Card Program
The WHTI land and sea final rule allowed U.S. federally recognized
Native American tribes to work with CBP to enter into agreements to
develop tribal ID cards that can be designated as acceptable to es-
tablish identity and citizenship when entering the United States at
land and sea ports of entry from contiguous territory or adjacent
islands. CBP has been working with various U.S. federally recognized
Native American tribes to facilitate the development of such cards.
3
As part of the process, CBP will enter into one or more agreements
with a U.S. federally recognized tribe that specify the requirements
for developing and issuing WHTI-compliant tribal cards, including a
testing and auditing process to ensure that the cards are produced
and issued in accordance with the terms of the agreements.
After production of the cards in accordance with the specified re-
quirements, and successful testing and auditing by CBP of the cards
and program, the Secretary of Homeland Security or the Commis-
sioner of CBP may designate the tribal card as an acceptable WHTI-
compliant document for the purpose of establishing identity and
citizenship when entering the United States by land or sea from
contiguous territory or adjacent islands. Such designation will be
announced by publication of a notice in the Federal Register. More
information about WHTI-compliant documents is available at
www.cbp.gov/travel.
Seneca Nation of Indians WHTI-Compliant Tribal Card Program
The Seneca Nation of Indians (Seneca Nation) has voluntarily es-
tablished a program to develop a WHTI-compliant tribal card that
denotes identity and U.S. or Canadian citizenship. On November 10,
2009, CBP and the Seneca Nation signed a Memorandum of Agree-
ment (MOA) to develop, issue, test, and evaluate tribal cards to be
used for border crossing purposes. Pursuant to this MOA, the cards
are issued to members of the Seneca Nation who can establish iden-
tity, tribal membership, and U.S. or Canadian citizenship. The cards
3
The Native American tribal cards qualifying to be a WHTI-compliant document for border
crossing purposes are commonly referred to as “Enhanced Tribal Cards” or “ETCs.”
3
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
incorporate physical security features acceptable to CBP as well as
facilitative technology allowing for electronic validation of identity,
citizenship, and tribal membership by CBP. In 2013, CBP and the
Seneca Nation entered into two related agreements, a January 15,
2013 service level agreement and an April 15, 2013 security agree-
ment. The former memorializes the technical specifications for the
production, issuance and use of the card, and the latter addresses
confidentiality and information sharing.
CBP has tested the cards developed by the Seneca Nation pursuant
to the above agreements and has performed an audit of the tribe’s
card program. On the basis of these tests and audit, CBP has deter-
mined that the cards meet the requirements of section 7209 of the
IRTPA and are acceptable documents to denote identity and citizen-
ship for purposes of entering the United States at land and sea ports
of entry from contiguous territory or adjacent islands. CBP’s contin-
ued acceptance of the tribal card as a WHTI-compliant document is
conditional on compliance with the MOA and all related agreements.
Acceptance and use of the WHTI-compliant tribal card is voluntary
for tribe members. If an individual is denied a WHTI-compliant tribal
card, he or she may still apply for a passport or other WHTI-
compliant document.
Designation
This notice announces that the Commissioner of CBP designates
the tribal card issued by the Seneca Nation in accordance with the
MOA and all related agreements between the tribe and CBP as an
acceptable WHTI-compliant document pursuant to section 7209 of
the IRTPA and 8 CFR 235.1(e). In accordance with these provisions,
the approved card, if valid and lawfully obtained, may be used to
denote identity and U.S. or Canadian citizenship of Seneca Nation
members for the purposes of entering the United States from con-
tiguous territory or adjacent islands at land and sea ports of entry.
4
Dated: July 7, 2015.
R. G
IL KERLIKOWSKE,
Commissioner.
[Published in the Federal Register, July 13, 2015 (80 FR 40076)]
4
The Native American Tribal Card issued by the Seneca Nation of Indians may not, by
itself, be used by Canadian citizen tribal members to establish that they meet the require-
ments of section 289 of the Immigration and Nationality Act (INA) [8 U.S.C. 1359]. INA §
289 provides that nothing in this title shall be construed to affect the right of American
Indians born in Canada to pass the borders of the United States, but such right shall extend
only to persons who possess at least 50 per centum of blood of the American Indian race.
While the tribal card may be used to establish a card holder’s identity for purposes of INA
§ 289, it cannot, by itself, serve as evidence of the card holder’s Canadian birth or that he
or she possesses at least 50% American Indian blood, as required by INA § 289.
4
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[CBP Dec. 15–10]
DESIGNATION OF AN ENHANCED DRIVER’S LICENSE
AND IDENTITY DOCUMENT ISSUED BY THE STATE OF
MINNESOTA AS A TRAVEL DOCUMENT UNDER THE
WESTERN HEMISPHERE TRAVEL INITIATIVE
AGENCY: U.S. Customs and Border Protection, DHS.
ACTION: Notice.
SUMMARY: This notice announces that the Commissioner of U.S.
Customs and Border Protection is designating enhanced driver’s li-
censes and identity documents issued by the State of Minnesota as
acceptable documents for purposes of the Western Hemisphere Travel
Initiative. These documents may be used to denote identity and
citizenship of U.S. citizens entering the United States from within the
Western Hemisphere at land and sea ports of entry.
DATES: This designation is effective July 13, 2015.
FOR FURTHER INFORMATION CONTACT: Arthur A. E.
Pitts, Director, Traveler Policies Division, Admissibility and
Passenger Programs, Office of Field Operations, U.S. Customs and
SUPPLEMENTARY INFORMATION:
Background
The Western Hemisphere Travel Initiative
Section 7209 of the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA), Public Law 108–458, as amended, required the
Secretary of Homeland Security (Secretary), in consultation with the
Secretary of State, to develop and implement a plan to require U.S.
citizens and individuals for whom documentation requirements have
previously been waived under section 212(d)(4)(B) of the Immigration
and Nationality Act (8 U.S.C. 1182(d)(4)(B)) to present a passport or
other document or combination of documents as the Secretary deems
sufficient to denote identity and citizenship for all travel into the
United States. See 8 U.S.C. 1185 note. On April 3, 2008, the Depart-
ment of Homeland Security (DHS) and the Department of State
promulgated a joint final rule, effective on June 1, 2009, that imple-
mented the plan known as the Western Hemisphere Travel Initiative
(WHTI) at U.S. land and sea ports of entry. See 73 FR 18384 (the
WHTI land and sea final rule). It amended various sections of title 8
5
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
of the Code of Federal Regulations (CFR), including 8 CFR 212.0,
212.1, and 235.1. The WHTI land and sea final rule specifies the
documents that U.S. citizens and nonimmigrant aliens from Canada,
Bermuda, and Mexico are required to present when entering the
United States at land and sea ports of entry from within the Western
Hemisphere (which includes contiguous territories and adjacent is-
lands of the United States).
Under the WHTI land and sea final rule, one type of citizenship and
identity document that U.S. citizens may present upon entry to the
United States is an enhanced driver’s license or identification docu-
ment
1
(EDL) designated as an acceptable document to denote identity
and citizenship by the Secretary pursuant to section 7209 of IRTPA,
as amended. Section 235.1(d) of title 8 of the Code of Federal Regu-
lations, as amended by the WHTI land and sea final rule, states:
Upon designation by the Secretary of Homeland Security of an
enhanced driver’s license as an acceptable document to denote iden-
tity and citizenship for purposes of entering the United States, U.S.
citizens and Canadians may be permitted to present these documents
in lieu of a passport upon entering or seeking admission to the United
States according to the terms of the agreements entered between the
Secretary of Homeland Security and the entity. The Secretary of
Homeland Security will announce, by publication of a notice in the
Federal Register, documents designated under this paragraph. A
list of designated documents will also be made available to the public.
The Secretary has delegated to the Commissioner of U.S. Customs
and Border Protection (CBP) the authority to designate certain docu-
ments as acceptable border crossing documents for persons arriving
in the United States by land or sea from within the Western Hemi-
sphere, including state-specific EDLs. See DHS Delegation Number
7105 (Revision 00), dated January 16, 2009.
EDL Programs
DHS is committed to working with the various States of the Union
and the Government of Canada to facilitate the development of State
and province-issued EDLs as travel documents that denote identity
and citizenship as required under section 7209 of IRTPA, as
amended. As part of the process, CBP will enter into one or more
agreements with a State that specifies the requirements for develop-
ing and issuing WHTI-compliant EDLs, including a testing and au-
1
The enhanced driver’s license or identification document may be in one of two forms, as
decided by the issuing authority, provided that the document (card) denotes identity and
citizenship and meets technical requirements: (1) An enhanced driver’s license or (2) an
enhanced identity card. The designation “EDL” covers both documents.
6
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
diting process to ensure that the cards are produced and issued in
accordance with the terms of the agreements.
After production of the cards in accordance with the specified re-
quirements, and successful testing and auditing by CBP of the cards
and program, the Secretary of DHS or the Commissioner of CBP may
designate the EDL as an acceptable WHTI-compliant document for
the purpose of establishing identity and citizenship when entering
the United States by land or sea from contiguous territory or adjacent
islands. Such designation will be announced by publication of a notice
in the Federal Register. More information about WHTI-compliant
documents is available at www.cbp.gov/travel.
Minnesota EDLs
The State of Minnesota (Minnesota) has established a voluntary
program to develop EDLs that would denote identity and citizenship.
On October 1, 2012, CBP and Minnesota entered into a Memorandum
of Agreement (MOA) to develop, issue, test, and evaluate an enhanced
driver’s license and identification card with facilitative technology to
be used for border crossing purposes. On November 21, 2012, CBP
approved the plan outlining the business process for the implemen-
tation of the Minnesota EDL program. Under the terms of the MOA
and business plan, Minnesota will only issue EDLs to U.S. citizens.
EDLs also may be issued as photo identification cards to non-drivers.
The cards are to incorporate physical security features acceptable to
CBP as well as facilitative technology allowing for electronic valida-
tion of identity and citizenship.
Subsequently, CBP and Minnesota entered into two related agree-
ments, a December 11, 2012 service level agreement and an April 15,
2013 security agreement. The former memorializes the technical
specifications for the production, issuance and use of the card, and the
latter addresses confidentiality and information sharing.
CBP has tested the cards developed by Minnesota pursuant to the
above agreements and has performed an audit of Minnesota’s EDL
program. On the basis of these tests and audit, CBP has determined
that the cards meet the requirements of section 7209 of IRTPA and
are acceptable documents to denote identity and citizenship for pur-
poses of entering the United States at land and sea ports of entry
from contiguous territory or adjacent islands. CBP’s continued accep-
tance of the Minnesota EDL as a WHTI-compliant document is con-
ditional on compliance with the MOA and all related agreements.
Acceptance and use of the WHTI-compliant EDL is voluntary. If an
individual is denied a WHTI-compliant EDL, he or she may still apply
for a passport or other WHTI-compliant document.
7
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Designation
This notice announces that the Commissioner of CBP designates
the EDL issued by Minnesota in accordance with the MOA and all
related agreements between Minnesota and CBP as an acceptable
document to denote identity and citizenship pursuant to section 7209
of IRTPA and 8 CFR 235.1(d). Therefore, pursuant to 8 CFR 235.1(d),
U.S. citizen holders of Minnesota EDLs may present these EDLs as
an alternative to a passport upon entering the United States at all
land and sea ports of entry when coming from contiguous territory
and adjacent islands from within the Western Hemisphere.
Dated: July 7, 2015.
R. G
IL KERLIKOWSKE,
Commissioner.
[Published in the Federal Register, July 13, 2015 (80 FR 40077)]
◆
AUTOMATED COMMERCIAL ENVIRONMENT (ACE)
EXPORT MANIFEST FOR AIR CARGO TEST
AGENCY: U.S. Customs and Border Protection, DHS.
ACTION: General notice.
SUMMARY: This document announces that U.S. Customs and Bor-
der Protection (CBP) plans to conduct the Automated Commercial
Environment (ACE) Export Manifest for Air Cargo Test, a National
Customs Automation Program (NCAP) test concerning ACE export
manifest capability. The ACE Export Manifest for Air Cargo Test is a
voluntary test in which participants agree to submit export manifest
data electronically, at least 4 hours prior to loading of the cargo onto
the aircraft in preparation for departure from the United States. CBP
regulations require carriers to submit a paper manifest for export air
shipments generally within 4 days after departure. This notice pro-
vides a description of the test, sets forth eligibility requirements for
participation, and invites public comment on any aspect of the test.
DATES: The test will begin no earlier than August 10, 2015 and
will run for approximately two years. CBP is accepting applications
for participation in this planned test until CBP has received
applications from nine parties that meet all test participant
requirements. Comments concerning this notice and all aspects of
the announced test may be submitted at any time during the test
period.
ADDRESSES: Applications to participate in the ACE Export
Manifest for Air Cargo Test must be submitted via email to CBP
8
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
line of the email, please use “ACE Export Manifest for Air Cargo
Test Application”. Written comments concerning program, policy,
and technical issues may also be submitted via email to CBP
line of the email, please use “Comment on ACE Export Manifest for
Air Cargo Test”.
FOR FURTHER INFORMATION CONTACT: Robert Rawls,
Cargo and Conveyance Security, Office of Field Operations, U.S.
SUPPLEMENTARY INFORMATION:
Background
The National Customs Automation Program
The National Customs Automation Program (NCAP) was estab-
lished in Subtitle B of Title VI—Customs Modernization, in the North
American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057, Dec. 8, 1993) (Customs Modernization Act)
(19 U.S.C. 1411–14). Through NCAP, the initial thrust of customs
modernization was on trade compliance and the development of the
Automated Commercial Environment (ACE), the planned successor
to the Automated Commercial System (ACS). ACE is an automated
and electronic system for commercial trade processing which is in-
tended to streamline business processes, facilitate growth in trade,
ensure cargo security, and foster participation in global commerce,
while ensuring compliance with U.S. laws and regulations and reduc-
ing costs for CBP and all of its communities of interest. The ability to
meet these objectives depends on successfully modernizing CBP’s
business functions and the information technology that supports
those functions. CBP’s modernization efforts are accomplished
through phased releases of ACE component functionality designed to
replace a specific legacy ACS or paper function. Each release begins
with a test and ends with mandatory use of the new ACE feature,
thus retiring the legacy ACS or paper function. Each release builds on
previous releases and sets the foundation for subsequent releases.
Authorization for the Test
The Customs Modernization Act provides the Commissioner of CBP
with the authority to conduct limited test programs or procedures
designed to evaluate planned components of the NCAP. The test
described in this notice is authorized pursuant to the Customs Mod-
9
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
ernization Act and section 101.9(b) of title 19 of the Code of Federal
Regulations (19 CFR 101.9(b)) which provides for the testing of NCAP
programs or procedures. As provided in 19 CFR 101.9(b), for purposes
of conducting an NCAP test, the Commissioner of CBP may impose
requirements different from those specified in the CBP regulations.
International Trade Data System (ITDS)
This test is also in furtherance of the International Trade Data
System (ITDS) key initiatives, set forth in section 405 of the Security
and Accountability for Every Port Act of 2006 (Pub. L. 109–347, 120
Stat. 1884, Oct. 13, 2006) (SAFE Port Act) (19 U.S.C. 1411(d)) and
Executive Order 13659 of February 19, 2014, Streamlining the
Export/Import Process for America’s Businesses. The purpose of
ITDS, as stated in section 405 of the SAFE Port Act, is to eliminate
redundant information requirements, efficiently regulate the flow of
commerce, and effectively enforce laws and regulations relating to
international trade, by establishing a single portal system, operated
by CBP, for the collection and distribution of standard electronic
import and export data required by all participating Federal agen-
cies. CBP is developing ACE as the ‘‘single window’’ for the trade
community to comply with the ITDS requirement established by the
SAFE Port Act.
Executive Order 13659 requires that by December 2016, ACE, as
the ITDS single window, have the operational capabilities to serve as
the primary means of receiving from users the standard set of data
and other relevant documentation (exclusive of applications for per-
mits, licenses, or certifications) required for the release of imported
cargo and clearance of cargo for export, and to transition from paper-
based requirements and procedures to faster and more cost-effective
electronic submissions to, and communications with, U.S. govern-
ment agencies.
Current Air Cargo Export Information Requirements
Under 19 CFR 122.72, 19 CFR 122.73, 19 CFR 122.74, 19 CFR
122.75, and 19 CFR 192.14, certain information must be submitted to
CBP for aircraft with export cargo leaving the United States for any
foreign area.
1
In most cases, the aircraft commander or agent must
file a general declaration on CBP Form 7507 pertaining to the out-
1
Section 122.72 requires the filing of a general declaration, an air cargo manifest, and any
required Shipper’s Export Declarations. Shipper’s Export Declarations were the Depart-
ment of Commerce paper forms used by the Bureau of the Census under the Foreign Trade
Statistics Regulations to collect information from an entity exporting from the United
States. These forms were used for compiling the official U.S. export statistics for the United
States and for export control purposes. The Shipper’s Export Declarations became obsolete
on October 1, 2008, with the implementation of the Foreign Trade Regulations (FTR) and
10
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
bound flight. Also, the aircraft commander or agent must file the air
cargo manifest, CBP Form 7509, with CBP at each port where export
cargo is loaded on the aircraft. Under 19 CFR 122.74, the airline must
file the complete air cargo manifest generally within 4 days after
departure of the aircraft. Finally, the U.S. Principal Party in Interest
(USPPI) must file any required Electronic Export Information (EEI)
for the cargo on the aircraft.
2
More details regarding the manifest
requirements, the subject of this test, are provided in the next section.
Current Air Cargo Manifest Requirements
As indicated in the previous section, the aircraft commander or
agent must file copies of the air cargo manifest on CBP Form 7509.
CBP Form 7509 consists of the following data elements:
(1) Owner/Operator
(2) Marks of nationality and registration
(3) Flight number
(4) Port of lading
(5) Port of unlading
(6) Date
(7) Consolidator (conditional)
(8) De-consolidator (conditional)
(9) Air waybill type (Master, House, or Sub)
(10) Air waybill number
(11) Number of pieces
(12) Weight (kg./lb.)
(13) Number of house air waybills
(14) Shipper name and address
have been superseded by the Electronic Export Information (EEI) filed in AES or through
the AESDirect. See 15 CFR 30.1. See also 19 CFR 192.14, regarding required EEI.
2
The USPPI is defined in the FTR as the person or legal entity in the United States that
receives the primary benefit, monetary or otherwise, from the export transaction. Generally,
that person or entity is the U.S. seller, manufacturer, or order party, or the foreign entity
while in the United States when purchasing or obtaining the goods for export. 15 CFR 30.1.
11
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(15) Consignee name and address
(16) Nature of goods
(17) Internal Transaction Number (ITN) or AES Exemption
Statement
3
The air cargo manifest may be filed in complete form or incomplete
form (pro forma). Under 19 CFR 122.74, the complete manifest must
be filed with CBP before the aircraft will be cleared to depart during
any time covered by a proclamation of the President that a state of
war exists between foreign nations, or if the aircraft is departing on
a flight from the United States directly or indirectly to a foreign
country listed in 19 CFR 4.75. Otherwise, for shipments to a foreign
country, an incomplete manifest may be filed with CBP at the depar-
ture airport when accompanied by the proper bond. For shipments on
direct flights to Puerto Rico, an incomplete manifest may be filed with
CBP upon arrival in Puerto Rico. If the complete manifest will not be
filed within one business day of arrival in Puerto Rico, the proper
bond must be filed at that time.
Under the bond accompanying the incomplete manifest, the com-
plete manifest must be filed with CBP by the airline within the
appropriate time period. For shipments to foreign countries, the com-
plete manifest must generally be filed no later than 4 business days
post-departure. For shipments between the United States and Puerto
Rico, the complete manifest must be filed no later than 7 business
days after arrival into or departure from Puerto Rico. For shipments
between the United States or Puerto Rico and U.S. possessions, the
complete manifest must be filed no later than 7 business days after
departure.
Trade Act and the Automated Export System (AES)
Section 343(a) of the Trade Act of 2002, as amended (Trade Act) (19
U.S.C. 2071 note), requires CBP to promulgate regulations providing
for the mandatory transmission of electronic cargo information by
way of a CBP-approved electronic data interchange (EDI) system
before the cargo is brought into or departs the United States by any
mode of commercial transportation (sea, air, rail, or truck). The re-
quired cargo information is that which is reasonably necessary to
enable high-risk shipments to be identified for purposes of ensuring
cargo safety and security and preventing smuggling pursuant to the
laws enforced and administered by CBP. Section 192.14 of title 19 of
3
Though not a data element on CBP Form 7509 itself, the carrier must include the ITN or
AES Exemption Statement on the outward manifest pursuant to 19 CFR 192.14(c)(3).
12
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
the Code of Federal Regulations (19 CFR 192.14) implements the
requirements of the Trade Act with regard to cargo departing the
United States.
While the air cargo manifest described above must be submitted by
the aircraft commander or agent, that is, by the air carrier, any
required EEI must be filed by the USPPI under 19 CFR 192.14. Using
a CBP-approved EDI system, the USPPI or its authorized agent must
transmit and verify system acceptance of this EEI, generally no later
than 2 hours prior to the scheduled departure time of the aircraft
from the last U.S. port. The air carrier may not load cargo without
first receiving from the USPPI or its authorized agent either the
related EEI filing citation, covering all cargo for which the EEI is
required, or exemption legends, covering cargo for which EEI need
not be filed. The outbound air carrier then must annotate the air
cargo manifest, waybill, or other export documentation with the ap-
plicable AES proof of filing, post departure, downtime, exclusion or
exemption citations, conforming to the approved data formats found
in the Bureau of the Census Foreign Trade Regulations (FTR) (15
CFR part 30).
Description of the ACE Export Manifest for Air Cargo Test
Purpose
The ACE Export Manifest for Air Cargo Test will test the function-
ality regarding the filing of export manifest data for air cargo elec-
tronically to ACE in furtherance of the ITDS initiatives described
above. CBP has re-engineered AES to move it to an ACE system
platform. The re-engineering and incorporation of AES into ACE will
result in the creation of a single automated export processing plat-
form for certain export manifest, commodity, licensing, export control,
and export targeting transactions. This will reduce costs for CBP,
partner government agencies, and the trade community and improve
facilitation of export shipments through the supply chain.
The ACE Export Manifest for Air Cargo Test will also test the
feasibility of requiring the manifest information to be filed electroni-
cally in ACE within a specified time before the cargo is loaded on the
aircraft. (Under the current regulatory requirements, the complete
manifest is required to be submitted by the airline on paper CBP
Form 7509 generally after the departure of the aircraft). As described
in the paragraph below, in the test, participants will submit export
manifest data electronically to ACE at least 4 hours prior to loading
of the cargo. This will enable CBP to easily link the EEI submitted by
the USPPI with the export manifest information earlier in the pro-
cess. This capability will better enable CBP to assess risk and effec-
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
tively target and inspect shipments prior to the loading of cargo to
ensure compliance with all U.S. export laws.
Procedures
Participants in the ACE Export Manifest for Air Cargo Test agree to
provide export manifest data electronically at least 4 hours prior to
loading of the cargo onto the aircraft in preparation for departure
from the United States. If the air carrier files this ACE Export Mani-
fest data, the electronic filing is in lieu of the paper filing of CBP Form
7509. If a freight forwarder files the ACE Export Manifest data, the
carrier is still required to file the CBP Form 7509 (or ACE Export
Manifest data, if the air carrier is also a test participant).
The ACE Export Manifest data submission will be used to target
high-risk air cargo. The data should be available to test participants
early in the planning stages of an export air cargo transaction. It is
anticipated that data provided 4 hours prior to loading will permit
adequate time for proper risk assessment and identification of ship-
ments to be inspected early enough in the supply chain to enhance
security while minimizing disruption to the flow of goods.
Any air cargo identified as potentially high-risk will receive a hold
until required additional information related to the shipment is sub-
mitted to clarify non-descriptive, inaccurate, or insufficient informa-
tion, a physical inspection is performed, or some other appropriate
action is taken, as specified by CBP. Once the cargo is cleared for
loading, a release message will be generated and transmitted to the
filer.
Data Elements
The ACE Export Manifest for Air Cargo Test data elements are
similar, but not identical to the data elements required on CBP Form
7509. The data elements are mandatory unless otherwise indicated.
Data elements that are indicated as ‘‘conditional’’ must be transmit-
ted to CBP only if the particular information pertains to the cargo.
The ACE Export Manifest for Air Cargo data elements are to be
submitted at the lowest bill level. The data elements consist of:
(1) Exporting Carrier (CBP finds this term to be clearer than the
term “Owner/Operator” used on CBP Form 7509)
(2) Marks of nationality and registration
(3) Flight number
(4) Port of lading
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(5) Port of unlading
(6) Scheduled date of departure (CBP finds this term to be clearer
than the term “Date” used on CBP Form 7509)
(7) Consolidator (conditional)
(8) De-consolidator (conditional)
(9) Air waybill type (Master, House, Simple or Sub)
(10) Air Waybill number
(11) Number of pieces and unit of measure
(12) Weight (kg./lb.)
(13) Number of house air waybills
(14) Shipper name and address
(15) Consignee name and address
(16) Cargo description (CBP finds this term to be clearer than the
term “Nature of goods” used on CBP Form 7509)
(17) AES Internal Transaction Number (ITN) or AES Exemption
Statement/ Exception Classification (per shipment)
(18) Split air waybill indicator (conditional)
(19) Hazmat indicator (Yes/No)
(20) UN Number (conditional) (If the hazmat indicator is yes, the
four-digit UN (United Nations) Number assigned to the haz-
ardous material must be provided.)
(21) In-bond number (conditional)
(22) Mode of transportation (Air, containerized or Air, non-
containerized)
There are currently no additional data elements identified for other
participating U.S. Government Agencies (PGAs) for the ACE Export
Manifest for Air Cargo Test. However, CBP may enhance the test in
the future with additional data or processing capabilities to assist
with facilitation of air shipment movements and to be consistent with
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Executive Order 13659. Any such enhancement will be announced in
the Federal Register.
Eligibility Requirements
CBP is limiting this test to nine stakeholders in the air cargo
environment. Specifically, CBP is seeking participation from:
• At least three, but no more than six, air carriers currently re-
quired to file paper export air cargo manifest CBP Form 7509
under 19 CFR 122.72 and 122.73; and
• At least three, but no more than six, freight forwarders.
There are no restrictions with regard to organization size, location,
or commodity type. However, participation is limited to those parties
able to electronically transmit export manifest data in the identified
acceptable format. Prospective ACE Export Manifest for Air Cargo
Test participants must have the technical capability to electronically
submit data to CBP and receive response message sets via Cargo-
IMP, AIR CAMIR, XML, or Unified XML, and must successfully
complete certification testing with their client representative. (Uni-
fied XML may not be immediately available at the start of the test.
However, parties wishing to utilize Unified XML may be accepted,
pending its development and implementation). Once parties have
applied to participate, they must complete a test phase to determine
if the data transmission is in the required readable format. Appli-
cants will be notified once they have successfully completed testing
and are permitted to participate fully in the test. In selecting partici-
pants, CBP will take into consideration the order in which the appli-
cations are received.
Conditions of Participation
Test participants agree to submit export manifest data electroni-
cally to CBP via an approved EDI at least 4 hours prior to the loading
of the cargo onto the aircraft in preparation for departure from the
United States. In addition, test participants agree to establish opera-
tional security protocols that correspond to CBP hold messages that
mandate the participant to take responsive action and respond to
CBP confirming that the requested action was taken to mitigate any
threat identified, respond promptly with complete and accurate in-
formation when contacted by CBP with questions regarding the data
submitted, and comply with any ‘‘Do Not Load’’ instructions.
Finally, test participants agree to participate in any teleconferences
or meetings established by CBP, when necessary, to ensure any chal-
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
lenges, or operational or technical issues regarding the test are prop-
erly communicated and addressed.
Participation in the ACE Export Manifest for Air Cargo Test does
not impose any legally binding obligations on either CBP or the
participant, and CBP generally does not intend to enforce or levy
punitive measures if test participants are non-compliant with these
conditions of participation during the test.
Application Process and Acceptance
Those interested in participating in the ACE Export Manifest for
Air Cargo Test should submit an email to CBP Export Manifest at
qualifications based on the above eligibility requirements. The email
will serve as an electronic signature of intent to participate and must
also include a point of contact name and telephone number. Applica-
tions will be accepted until CBP has received applications from nine
parties that meet all test participant requirements. CBP will notify
applicants whether they have been selected to participate in the test.
Applicants will also be notified once they have successfully completed
testing and are permitted to participate fully in the test.
Test participants will receive technical, operational, and policy
guidance through all stages of test participation, from planning to
implementation, on the necessary steps for the transmission of elec-
tronic export manifest data.
Costs to ACE Export Manifest for Air Cargo Test Participants
ACE Export Manifest for Air Cargo Test participants are respon-
sible for all costs incurred as a result of their participation in the test
and such costs will vary, depending on their pre-existing infrastruc-
tures. Costs may be offset by a significant reduction in expenses
associated with copying, storing, and courier services for presenting
the paper manifest to CBP.
Benefits to ACE Export Manifest for Air Cargo Test Participants
While the benefits to ACE Export Manifest for Air Cargo Test
participants will vary, several advantages of joining may include:
• Reduction in costs associated with generating copies, transpor-
tation, and storage of paper manifest documentation;
• Increases in security by leveraging CBP threat model and other
data to employ a risk-based approach to improve air cargo secu-
rity and to ensure compliance with U.S. export laws, rules and
regulations through targeted screening;
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
• Gains in efficiencies by automating the identification of high-risk
cargo for enhanced screening;
• The ability to provide input into CBP efforts to establish, test,
and refine the interface between government and industry com-
munication systems for the implementation of the electronic
export manifest; and
• Facilitation of corporate preparedness for future mandatory
implementation of electronic export manifest submission re-
quirements.
Waiver of Certain Regulatory Requirements
For purposes of this test, the requirement to file a paper CBP Form
7509, as provided in 19 CFR 122.72–122.75 will be waived for air
carrier test participants that submit the ACE Export Manifest for Air
Cargo data elements electronically as described above. If a freight
forwarder submits the electronic ACE Export Manifest data, the air
carrier is still required to file the paper CBP Form 7509 (or the
electronic ACE Export Manifest data, if the air carrier is a test
participant). The air carrier maintains responsibility for submitting
the manifest data to CBP to cover all cargo on the aircraft, even if the
freight forwarder has also submitted manifest data. Participation in
the test does not alter the participant’s obligations to comply with any
other applicable statutory and regulatory requirements, including 19
CFR 122.72–122.75, and participants will still be subject to appli-
cable penalties for non-compliance. In addition, submission of data
under the pilot does not exempt the participant from any CBP or
other U.S. Government agency program requirements or any statu-
tory sanctions in the event that a violation of U.S. export laws or
prohibited articles are discovered within a shipment/container pre-
sented for export destined from the United States on an aircraft
owned and/ or operated by the participant.
Duration and Evaluation of the ACE Export Manifest for Air Cargo
Test
The test will be activated on a case-by-case basis with each partici-
pant and may be limited to a single or small number of ports until any
operational, training, or technical issues on either the trade or gov-
ernment side are established and/or resolved. The test will run for
approximately two years from August 10, 2015. While the test is
ongoing, CBP will evaluate the results and determine whether the
test will be extended, expanded to include additional participants, or
otherwise modified. CBP will announce any such modifications by
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
notice in the Federal Register. When sufficient test analysis and
evaluation has been conducted, CBP intends to begin rulemaking to
require the submission of electronic export manifest data before the
cargo is loaded onto the aircraft for all international shipments des-
tined from the United States. The results of the test will help deter-
mine the relevant data elements, the time frame within which data
should be submitted to permit CBP to effectively target, identify, and
mitigate any risk with the least impact practicable on trade opera-
tions, and any other related procedures and policies.
Confidentiality
All data submitted and entered into ACE is subject to the Trade
Secrets Act (18 U.S.C. 1905) and is considered confidential, except to
the extent as otherwise provided by law. However, participation in
this or any ACE test is not confidential and upon a written Freedom
of Information Act (FOIA) request, the name(s) of an approved par-
ticipant(s) will be disclosed by CBP in accordance with 5 U.S.C. 552.
Misconduct Under the Test
If a test participant fails to abide by the rules, procedures, or terms
and conditions of this and all other applicable Federal Register
Notices, fails to exercise reasonable care in the execution of partici-
pant obligations, or otherwise fails to comply with all applicable laws
and regulations, then the participant may be suspended from partici-
pation in this test and/or subjected to penalties, liquidated damages,
and/or other administrative or judicial sanction. Additionally, CBP
has the right to suspend a test participant based on a determination
that an unacceptable compliance risk exists.
If CBP determines that a suspension is warranted, CBP will notify
the participant of this decision, the facts or conduct warranting sus-
pension, and the date when the suspension will be effective. In the
case of willful misconduct, or where public health interests or safety
are concerned, the suspension may be effective immediately. This
decision may be appealed in writing to the Assistant Commissioner,
Office of Field Operations, within 15 days of notification. The appeal
should address the facts or conduct charges contained in the notice
and state how the participant has or will achieve compliance. CBP
will notify the participant within 30 days of receipt of an appeal
whether the appeal is granted. If the participant has already been
suspended, CBP will notify the participant when their participation
in the test will be reinstated.
Paperwork Reduction Act
As noted above, CBP will be accepting no more than nine partici-
pants in the ACE Export Manifest for Air Cargo Test. This means that
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
fewer than ten persons will be subject to any information collections
under this test. Accordingly, collections of information within this
notice are exempted from the requirements of the Paperwork Reduc-
tion Act of 1995 (44 U.S.C. 3502 and 3507).
Dated: July 7, 2015.
T
ODD C. OWEN,
Assistant Commissioner,
Office of Field Operations.
[Published in the Federal Register, July 10, 2015 (80 FR 39790)]
◆
NATIONAL CUSTOMS AUTOMATION PROGRAM (NCAP)
CONCERNING REMOTE LOCATION FILING ENTRY
PROCEDURES IN THE AUTOMATED COMMERCIAL
ENVIRONMENT (ACE) AND THE USE OF THE DOCUMENT
IMAGE SYSTEM FOR THE SUBMISSION OF INVOICES
AND THE USE OF E BONDS FOR THE TRANSMISSION OF
SINGLE TRANSACTION BONDS
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: General notice.
SUMMARY: This document announces U.S. Customs and Border
Protection’s (CBP’s) plan to conduct a National Customs Automation
Program (NCAP) test concerning entries filed using remote location
(RLF) filing procedures. The test expands the entry types eligible for
RLF procedures and the port locations where RLF entries may be
filed; requires the electronic transmission of invoices using the Docu-
ment Image System (DIS); and requires that single transaction bonds
be transmitted using eBond for RLF entries requiring a single trans-
action bond. This test applies only to entries ‘‘certified for cargo
release from summary’’ filed through the Automated Commercial
Environment (ACE). Remote location filing is a special entry proce-
dure which allows importers of record and brokers with a national
permit to file an entry electronically from a remote location other
than where the goods are being entered.
This test is in furtherance of key CBP modernization initiatives and
the development of ACE. CBP is transitioning all entry types to ACE
from the legacy Automated Commercial System (ACS). This test
checks the viability, reliability and functionality associated with filing
invoices using DIS; submitting single transaction bonds using eBond
for RLF entries submitted in ACE; and expanding the entry types
eligible for RLF procedures and port locations.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
This notice invites public comment concerning the test program;
provides legal authority for the test; explains the purpose of the test;
provides test participant responsibilities; identifies the regulations
that will be waived under the test; provides eligibility criteria for
participation in the test; explains the application process; and estab-
lishes the duration of the test. This notice also explains the repercus-
sions and appeals process for misconduct under the test.
DATES: The initial phase of the RLF test will begin on August 12,
2015. This test will continue until concluded by way of an
announcement in the Federal Register. Comments will be
accepted through the duration of the test.
ADDRESSES: Comments concerning this notice and any aspect of
this test may be submitted at any time during the test via email to
Josephine Baiamonte, ACE Business Office (ABO), Office of
subject line of your email, please indicate, “Comment on RLF Test
FRN”.
FOR FURTHER INFORMATION CONTACT: For technical
questions related to the Automated Commercial Environment
(ACE) or Automated Broker Interface (ABI) transmissions, contact
your assigned client representative. Interested parties without an
assigned client representative should direct their questions to
SUPPLEMENTARY INFORMATION:
I. Background
The National Customs Automation Program (NCAP) was estab-
lished in Subtitle B of Title VI—Customs Modernization (Customs
Modernization Act), in the North American Free Trade Agreement
Implementation Act, Pub. L. 103–182, 107 Stat. 2057 (19 U.S.C.
1411). Through NCAP, the initial thrust of customs modernization
was on trade compliance and the development of the Automated
Commercial Environment (ACE), the planned successor to the Auto-
mated Commercial System (ACS). The ability to meet these objectives
depends on successfully modernizing CBP’s business functions and
the information technology that supports those functions. CBP’s mod-
ernization efforts are accomplished through phased releases of ACE
component functionality designed to introduce a new capacity or to
replace a specific legacy ACS function. Each release will begin with a
test and will end with mandatory compliance with the new ACE
feature, thus retiring the legacy ACS function. Each release builds on
previous releases and sets the foundation for subsequent releases.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
For the convenience of the public, a chronological listing of Federal
Register publications detailing ACE test developments is set forth
below in Section XII, entitled, ‘‘Development of ACE Prototypes.’’ The
procedures and criteria related to participation in the prior ACE tests
remain in effect unless otherwise explicitly changed by this or sub-
sequent notices published in the Federal Register.
II. Authorization for the Test
The Customs Modernization provisions provide the Commissioner
of CBP with authority to conduct limited test programs or procedures
designed to evaluate planned components of the NCAP. The test
described in this notice is authorized pursuant to § 101.9(b) of title 19
of the Code of Federal Regulations (19 CFR 101.9(b)), which provides
for the testing of NCAP programs or procedures. See Treasury Deci-
sion (T.D.) 95–21.
III. Remote Location Filing (RLF)
Remote location filing is a planned component of the NCAP, autho-
rized by section 411 of the Tariff Act of 1930, as amended by section
631 of the Customs Modernization Act. See 19 U.S.C. 1411(a)(2)(B).
After years of testing RLF entry procedures, CBP published a final
rule in the Federal Register that implemented RLF as a special
entry procedure. See 74 FR 69015 (December 30, 2009). These regu-
lations, codified at 19 CFR part 143, subpart E, authorize importers
of record and brokers with a national permit to file an entry electroni-
cally from a remote location other than where the goods are being
entered. Under CBP regulations, only certain entry types may be filed
using RLF procedures and these entries must be filed at a RLF-
operational CBP location. A current listing of RLF eligible entry types
may be found at the following link: http://www.cbp.gov/trade/entry-
summary/remote-location-filing/eligibility. A current list of RLF-
operational CBP locations may be found at the following link: http://
www.cbp.gov/document/guidance/rlf-operational-location-points-
contact.
At this time, the entry types that may be filed using RLF proce-
dures for parties not participating in this test are 01 entries (formal
consumption entries), 03 entries (formal consumption entries subject
to antidumping or countervailing duties), and 11 entries (informal
entries). Interested parties should check the CBP links referenced
above for changes to the entry types authorized for RLF procedures
and changes to the RLF operational CBP locations.
Under the CBP regulations (19 CFR part 143, subpart E), importers
and licensed customs brokers with a national permit must be opera-
tional on (1) the Automated Broker Interface (ABI); an interface that
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
allows participants to electronically file required import data with
CBP and transfers that data into ACE; (2) the Electronic Invoice
Program (EIP), a module of ABI which allows entry filers to transmit
detailed invoice data through the Automated Invoice Interface (AII);
and (3) the Automated Clearing House (ACH) which is a CBP- ap-
proved method for the electronic payment of duties, fees and taxes.
RLF entry filers must be operational on ACH at least 30 days prior to
filing a RLF entry. Additionally, all entries filed using RLF procedures
must be secured by a continuous bond. The CBP regulations also
require that any invoice data required or requested by CBP be trans-
mitted electronically using EIP, and any payment of duties, fees and
taxes be submitted through ACH. The CBP regulations prohibit com-
bining the use of RLF procedures with the use of line release or
immediate entry procedures. RLF filers may certify release from
summary, i.e., file an entry summary that serves as both an entry and
an entry summary. RLF filers must file electronically (including by
facsimile transmissions) all additional information required to be
presented with an entry and entry summary that CBP can accept
electronically. If CBP cannot accept the additional information elec-
tronically, the additional information must be presented in paper
form at the port of entry.
IV. Request for Participation and Test Participation Criteria
Any party who wishes to participate in this test should contact their
assigned client representative and request to participate. Interested
parties without an assigned client representative should direct their
the assignment of a client representative and submit a request to
participate in this test to the newly assigned client representative.
Any party seeking to participate in this test must provide CBP, as
part of its request to participate, its filer code and the port(s) at which
it is interested in filing RLF entries.
In order to participate in this test, an interested party must be a
participant in the DIS test. Moreover, any party who participates in
this test and wishes to, or is required to, submit a single transaction
bond must also participate in the eBond test or use a surety or surety
agent participating in the eBond test for the submission of the single
transaction bond. For eligibility requirements for participation in the
DIS test, see 77 FR 20835 (April 6, 2012); 78 FR 44142 (July 23, 2013);
78 FR 53466 (August 29, 2013); and 79 FR 36083 (June 23, 2014). For
eligibility requirements for participation in the eBond test, see 79 FR
70881 (November 28, 2014) and 80 FR 516 (January 6, 2015).
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
V. Test Procedures and Participant Responsibilities
Only entries filed through ACE that are certified for ACE cargo
release from summary may be submitted under this test. For such
ACE entries, this test seeks to determine the viability, reliability and
functionality of: (1) Expanding the entry types eligible for RLF pro-
cedures and the port locations where RLF entries may be filed; (2)
submitting invoices using the DIS, instead of EIP, for entries filed
using RLF entry procedures; and (3) submitting single transaction
bonds using eBond procedures for entries filed using RLF entry pro-
cedures that require such a bond.
Under the RLF ACE test, participants will be allowed to file entry
types 01, 03, 11, and 52. Test participants should check the following
link to determine, for purposes of this test, which entry types are
eligible for RLF procedures and the port locations where RLF entries
may be filed: http://www.cbp.gov/trade/entry-summary/remote-
location-filing. Test participants should also check the link regularly
for any changes to the list of eligible entry types and port locations.
Please note that the list of entry types and operational ports eligible
for RLF procedures under this test is larger than the list of entry
types and port locations eligible for RLF procedures under the cur-
rent CBP regulations (19 CFR part 143, subpart E). Test participants
are required to submit invoices, including pro forma invoices, re-
quired or requested by CBP using the DIS. Test participants may not
submit invoice data using EIP. Test participants who file a RLF entry
that requires the filing of a single transaction bond must submit it
using eBond. The use of eBond for submitting single transaction
bonds is mandatory and exclusive, and participants may not submit
a single transaction bond through any other manner for RLF entries
filed under this test. Test participants are required to follow and
abide by all terms, conditions and requirements of the DIS and eBond
tests.
VI. Waiver of Regulations Under the Test
For purposes of this test, 19 CFR part 143, subpart E is waived to
the extent it is inconsistent with the provisions of this test notice.
VII. Test Duration
The initial phase of the test will begin August 12, 2015 and will
continue until concluded by way of an announcement in the Federal
Register. At the conclusion of the test, an evaluation will be con-
ducted to assess the viability, reliability and utility of receiving in-
voices and invoice data through DIS and single transaction bonds
through eBond for entries filed using RLF procedures. The final
results of the evaluation will be published in the Federal Register
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
and the Customs Bulletin as required in 19 CFR 101.9(b)(2). Any
modification, change or expansion of this test or the DIS or eBond
tests will be announced via a separate Federal Register notice.
VIII. Comments
All interested parties are invited to comment on any aspect of this
test at any time. CBP requests comments and feedback on all aspects
of this test, including the design, conduct and implementation of the
test, in order to determine whether to modify, alter, expand, limit,
continue, end, or fully implement this program.
IX. Paperwork Reduction Act
The collection of information contained in this test has been ap-
proved by the Office of Management and Budget (OMB) in accordance
with the requirements of the Paperwork Reduction Act (44 U.S.C.
3507) and assigned OMB number 1651–0024. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a valid control number
assigned by OMB.
X. Confidentiality
All data submitted and entered into ACE is subject to the Trade
Secrets Act (18 U.S.C. 1905) and is considered confidential, except to
the extent as otherwise provided by law. As stated in previous notices,
participation in this or any of the previous ACE tests is not confiden-
tial and upon a written Freedom of Information Act (FOIA) request,
a name(s) of an approved participant(s) will be disclosed by CBP in
accordance with 5 U.S.C. 552.
XI. Misconduct Under the Test
A test participant may be subject to civil and criminal penalties,
administrative sanctions, liquidated damages, or discontinuance
from participation in this test for any of the following:
(1) Failure to follow the terms and conditions of this test, or the
DIS and eBond tests;
(2) Failure to exercise reasonable care in the execution of partici-
pant obligations;
(3) Failure to abide by applicable laws and regulations that have
not been waived; or
(4) Failure to deposit duties, taxes or fees in a timely manner.
If the Director, Business Transformation Division, ACE Business
Office (ABO), Office of International Trade finds that there is a basis
for discontinuance of test participation privileges, the test participant
will be provided a written notice proposing the discontinuance with a
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
description of the facts or conduct warranting the action. The test
participant will be offered the opportunity to appeal the Director’s
decision in writing within 10 calendar days of receipt of the written
notice. The appeal must be submitted to the Executive Director, ABO,
Office of International Trade by emailing
The Executive Director will issue a decision in writing on the
proposed action within 30 working days after receiving a timely filed
appeal from the test participant. If no timely appeal is received, the
proposed notice becomes the final decision of the Agency as of the date
that the appeal period expires. A proposed discontinuance of a test
participant’s privileges will not take effect unless the appeal process
under this paragraph has been concluded with a written decision
adverse to the test participant.
In the case of willfulness or those in which public health, interest,
or safety so requires, the Director, Business Transformation Division,
ABO, Office of International Trade, may immediately discontinue the
test participant’s privileges upon written notice to the test partici-
pant. The notice will contain a description of the facts or conduct
warranting the immediate action. The test participant will be offered
the opportunity to appeal the Director’s decision within 10 calendar
days of receipt of the written notice providing for immediate discon-
tinuance. The appeal must be submitted to the Executive Director,
ABO, Office of International Trade by emailing
[email protected]. The immediate discontinuance will
remain in effect during the appeal period. The Executive Director will
issue a decision in writing on the discontinuance within 15 working
days after receiving a timely filed appeal from the test participant. If
no timely appeal is received, the notice becomes the final decision of
the Agency as of the date that the appeal period expires.
XII. Developments of ACE Prototypes
A chronological listing of Federal Register publications detailing
ACE test developments is set forth below.
• ACE Portal Accounts and Subsequent Revision Notices: 67 FR
21800 (May 1, 2002); 69 FR 5360 and 69 FR 5362 (February 4,
2004); 69 FR 54302 (September 8, 2004); 70 FR 5199 (February
1, 2005).
• ACE System of Records Notice: 71 FR 3109 (January 19, 2006).
• Terms/Conditions for Access to the ACE Portal and Subsequent
Revisions: 72 FR 27632 (May 16, 2007); 73 FR 38464 (July 7,
2008).
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
• ACE Non-Portal Accounts and Related Notice: 70 FR 61466
(October 24, 2005); 71 FR 15756 (March 29, 2006).
• ACE Entry Summary, Accounts and Revenue (ESAR I) Capabili-
ties: 72 FR 59105 (October 18, 2007).
• ACE Entry Summary, Accounts and Revenue (ESAR II) Capa-
bilities: 73 FR 50337 (August 26, 2008); 74 FR 9826 (March 6,
2009).
• ACE Entry Summary, Accounts and Revenue (ESAR III) Capa-
bilities: 74 FR 69129 (December 30, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR IV) Capa-
bilities: 76 FR 37136 (June 24, 2011).
• Post-Entry Amendment (PEA) Processing Test: 76 FR 37136
(June 24, 2011).
• ACE Announcement of a New Start Date for the National Cus-
toms Automation Program Test of Automated Manifest Capabili-
ties for Ocean and Rail Carriers: 76 FR 42721 (July 19, 2011).
• ACE Simplified Entry: 76 FR 69755 (November 9, 2011).
• National Customs Automation Program (NCAP) Tests Concern-
ing Automated Commercial Environment (ACE) Document Im-
age System (DIS): 77 FR 20835 (April 6, 2012).
• National Customs Automation Program (NCAP) Tests Concern-
ing Automated Commercial Environment (ACE) Simplified En-
try: Modification of Participant Selection Criteria and Applica-
tion Process: 77 FR 48527 (August 14, 2012).
• Modification of NCAP Test Regarding Reconciliation for Filing
Certain Post-Importation Preferential Tariff Treatment Claims
under Certain FTAs: 78 FR 27984 (May 13, 2013).
• Modification of Two National Customs Automation Program
(NCAP) Tests Concerning Automated Commercial Environment
(ACE) Document Image System (DIS) and Simplified Entry (SE):
78 FR 44142 (July 23, 2013).
• Modification of Two National Customs Automation Program
(NCAP) Tests Concerning Automated Commercial Environment
(ACE) Document Image System (DIS) and Simplified Entry (SE);
Correction: 78 FR 53466 (August 29, 2013).
27
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
• Modification of NCAP Test Concerning Automated Commercial
Environment (ACE) Cargo Release (formerly known as Simpli-
fied Entry): 78 FR 66039 (November 4, 2013).
• Post-Summary Corrections to Entry Summaries Filed in ACE
Pursuant to the ESAR IV Test: Modifications and Clarifications:
78 FR 69434 (November 19, 2013).
• National Customs Automation Program (NCAP) Test Concern-
ing the Submission of Certain Data Required by the Environ-
mental Protection Agency and the Food Safety and Inspection
Service Using the Partner Government Agency Message Set
Through the Automated Commercial Environment (ACE): 78 FR
75931 (December 13, 2013).
• Modification of National Customs Automation Program (NCAP)
Test Concerning Automated Commercial Environment (ACE)
Cargo Release for Ocean and Rail Carriers: 79 FR 6210 (Febru-
ary 3, 2014).
• Modification of National Customs Automation Program (NCAP)
Test Concerning Automated Commercial Environment (ACE)
Cargo Release to Allow Importers and Brokers to Certify From
ACE Entry Summary: 79 FR 24744 (May 1, 2014).
• Modification of National Customs Automation Program (NCAP)
Test Concerning Automated Commercial Environment (ACE)
Cargo Release for Truck Carriers: 79 FR 25142 (May 2, 2014).
• Modification of National Customs Automation Program (NCAP)
Test Concerning Automated Commercial Environment (ACE)
Document Image System: 79 FR 36083 (June 25, 2014).
• Announcement of eBond Test: 79 FR 70881 (November 28, 2014).
• eBond Test Modifications and Clarifications: Continuous Bond
Executed Prior to or Outside the eBond Test May Be Converted
to an eBond by the Surety and Principal, Termination of an
eBond by Filing Identification Number, and Email Address Cor-
rection: 80 FR 899 (January 7, 2015).
• Modification of National Customs Automation Program (NCAP)
Test Concerning Automated Commercial Environment (ACE)
Document Image System Relating to Animal and Plant Health
Inspection Service (APHIS) Document Submissions: 80 FR 5126
(January 30, 2015).
28
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
• Modification of National Customs Automation Program (NCAP)
Test Concerning the use of Partner Government Agency Message
Set through the Automated Commercial Environment (ACE) for
the Submission of Certain Data Required by the Environmental
Protection Agency (EPA): 80 FR 6098 (February 4, 2015).
• Announcement of Modification of ACE Cargo Release Test to
Permit the Combined Filing of Cargo Release and Importer Se-
curity Filing (ISF) Data: 80 FR 7487 (February 10, 2015).
• Modification of NCAP Test Concerning ACE Cargo Release for
Type 03 Entries and Advanced Capabilities for Truck Carriers:
80 FR 16414 (March 27, 2015).
Dated: July 8, 2015.
B
RENDA SMITH,
Assistant Commissioner,
Office of International Trade.
[Published in the Federal Register, July 13, 2015 (80 FR 40079)]
◆
PROPOSED REVOCATION OF A RULING LETTER AND
PROPOSED MODIFICATION OF A RULING LETTER AND
PROPOSED REVOCATION OF TREATMENT RELATING TO
THE TARIFF CLASSIFICATION OF TEXTILE AND PLASTIC
NECKLACES
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of proposed revocation of a ruling letter, proposed
modification of a ruling letter, and proposed revocation of treatment
relating to the tariff classification of textile and plastic necklaces.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§1625 (c)), as amended by Section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-
ested parties that U.S. Customs and Border Protection (CBP)
proposes to revoke a ruling letter, to modify a ruling letter, and to
revoke treatment relating to the tariff classification of textile and
plastic necklaces under the Harmonized Tariff Schedule of the United
States (HTSUS). CBP also proposes to revoke any treatment previ-
ously accorded by CBP to substantially identical transactions. Com-
ments are invited on the correctness of the proposed actions.
DATES: Comments must be received on or before August 28, 2015.
29
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
ADDRESSES: Written comments are to be addressed to the U.S.
Customs and Border Protection, Office of International Trade,
Regulations & Rulings, Attention: Trade and Commercial
Regulations Branch, 90 K Street N.E., 10th Floor, Washington,
D.C. 20229–1177. Submitted comments may be inspected at the
address stated above during regular business hours. Arrangements
to inspect submitted comments should be made in advance by
calling Mr. Joseph Clark at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT: Beth Jenior, Tariff
Classification and Marking Branch: (202) 325–0347.
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These con-
cepts are premised on the idea that in order to maximize voluntary
compliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under customs and related laws. In
addition, both the trade community and CBP share responsibility in
carrying out import requirements. For example, under section 484 of
the Tariff Act of 1930, as amended (19 U.S.C. §1484), the importer of
record is responsible for using reasonable care to enter, classify and
value imported merchandise, and to provide any other information
necessary to enable CBP to properly assess duties, collect accurate
statistics and determine whether any other applicable legal require-
ment is met.
Pursuant to section 625 (c)(1), Tariff Act of 1930, as amended (19
U.S.C. §1625 (c)(1)), this notice advises interested parties that CBP
intends to revoke a ruling letter and to modify a ruling letter per-
taining to the tariff classification of textile and plastic necklaces.
Although in this notice, CBP is specifically referring to the revocation
of New York Ruling Letter (NY) N022480, dated February 13, 2008
(Attachment A), and to the modification of NY N059109, dated May
29, 2009 (Attachment B), this notice covers any rulings on this mer-
chandise which may exist but have not been specifically identified.
CBP has undertaken reasonable efforts to search existing databases
for rulings in addition to the ones identified. No further rulings have
30
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
been found. Any party who has received an interpretive ruling or
decision (i.e., ruling letter, internal advice memorandum or decision
or protest review decision) on the merchandise subject to this notice
should advise CBP during this notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930, as
amended (19 U.S.C. §1625 (c)(2)), CBP proposes to revoke any treat-
ment previously accorded by CBP to substantially identical transac-
tions. Any person involved in substantially identical transactions
should advise CBP during this notice period. An importer’s failure to
advise CBP of substantially identical transactions or of a specific
ruling not identified in this notice may raise issues of reasonable care
on the part of the importer or its agents for importations of merchan-
dise subsequent to the effective date of the final notice of this pro-
posed action.
In NY N022480 and NY N059109, CBP determined that the neck-
laces were classified in subheading 6217.10.95, which provides, in
pertinent part, for “Other made up clothing accessories...: Accesso-
ries: Other: Other.” It is now CBP’s position that the necklaces are
classified in subheading 7117.90.75, HTSUS, which provides, in per-
tinent part, for “Imitation jewelry: Other: Other: Valued over twenty
cents per dozen pieces or parts: Other: Of plastics.”
Pursuant to 19 U.S.C. §1625(c)(1), CBP proposes to revoke NY
N022480, to modify NY N059109, and to revoke or to modify any
other ruling not specifically identified, in order to reflect the proper
classification of the necklaces according to the analysis contained in
proposed Headquarters Ruling Letter (HQ) H257790, set forth as
Attachment C to this document. Additionally, pursuant to 19 U.S.C.
§1625(c)(2), CBP intends to revoke any treatment previously ac-
corded by CBP to substantially identical transactions.
Before taking this action, consideration will be given to any written
comments timely received.
Dated: July 7, 2015
I
EVA K. O’ROURKE
for
MYLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachments
31
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT A]
N059109
May 29, 2009
CLA-2–71:OT:RR:NC:N4:433
CATEGORY: Classification
TARIFF NO.: 6217.10.9530; 7117.90.5500;
7117.90.7500
M
R.RANDY GREEN
TARGET CUSTOMS BROKERS
7000 TARGET PARKWAY NORTH
NCD-0456
B
ROOKLYN PARK, MN 55445
RE: The tariff classification of a silicone bracelet and necklace from Taiwan.
D
EAR MR.GREEN:
In your letter dated April 24, 2009, you requested a tariff classification
ruling. The samples submitted with this request will be returned as you
requested.
Two submitted samples are identified as Ionic Energy Bands. Both items
will be marketed as producing certain benefits, such as increased energy.
Style number 1004154 is a bracelet made of 90% silicone and the balance
being a combination of Germinium 123, Titanium and Mineral. It is cut from
strips and molded to be worn as a bracelet. The bracelet hasa2½inch
diameter and is cut so that it can slip over the wrist without closures and
fittings.
You describe the silicone bracelet as being made of silicone rubber. Note 4
to Chapter 40 of the Harmonized Tariff Schedule of the United States (HT-
SUS), describes synthetic rubber as applying to unsaturated synthetic sub-
stances which can be irreversibly transformed by vulcanization with sulfur
into non-thermoplastic substances which, at a temperature between 18 and
29 degrees Centigrade, will not break on being extended to three times their
original length and will return, after being extended to twice their original
length, within a period of 5 minutes, to a length not greater than 1–1/2 times
their original length. Silicone is not cross-linkable with sulfur, and thus is not
considered to be rubber for tariff classification purposes. The Silicone Brace-
let is considered to be of plastics for tariff purposes.
The silicon necklace, style number 1004153 is a 22 inch long silicon tube
surrounded by a woven nylon fabric. This item has a plastic clip means of
closure and contains 7% polyamide, 6% Germinium and trace Mineral.
The applicable subheading for the silicone bracelet, if valued under 20
cents per dozen pieces or parts, will be 7117.90.5500, Harmonized Tariff
Schedule of the United States (HTSUS), which provides for “Imitation jew-
elry: Other: Other: Valued under 20 cents per dozen pieces or parts: Other: Of
plastics.” The rate of duty will be 7.2% ad valorem.
The applicable subheading for the silicone bracelet, if valued over 20 cents
per dozen pieces or parts, will be 7117.90.7500, Harmonized Tariff Schedule
of the United States (HTSUS), which provides for “Imitation jewelry: Other:
Other: Valued over 20 cents per dozen pieces or parts: Other: Of plastics.” The
rate of duty will be free.
The applicable subheading for the Silicone Necklace will be 6217.10.9530,
Harmonized Tariff Schedule of the United States (HTSUS), which provides
32
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
for “Other made up clothing accessories; parts of garments or of clothing
accessories, other than those of heading 6212: Accessories: Other, Other: Of
man-made fibers.” The rate of duty will be 14.6% 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 World Wide Web at http://www.usitc.gov/tata/hts/.
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 Neil H. Levy at (646) 733–3036.
Sincerely,
R
OBERT B. SWIERUPSKI
Director
National Commodity Specialist Division
33
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT B]
N022480
February 13, 2008
CLA-2–62:OT:RR:NC:N3:353
CATEGORY: Classification
TARIFF NO.: 6217.10.9530
MR.STEVE COZ
EAGLE WINGS
2101 OLD HICKORY TREE RD.
ST.CLOUD,FLORIDA 34772
RE: The tariff classification of a textile necklace from China.
D
EAR MR.COZ:
In your letter undated letter, you requested a classification ruling.
The submitted sample Style 6903 Georgia Titan Necklace is a textile
necklace made of woven nylon fabric surrounding a silicone/plastic core with
a plastic clasp and two silicone stations with the letter G. The necklace is
used to show support of the Georgia Titans Team.
The applicable subheading for the Style 6903 Georgia Titan Necklace will
be 6217.10.9530, Harmonized Tariff Schedule of the United States (HTSUS),
which provides for “Other made up clothing accessories; parts of garment-
s...Accessories: Other: Other: Of man-made fibers.” The duty rate will be
14.6% ad valorem. The textile category designation is 659.
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/.
With the exception of certain products of China, quota/visa requirements
are no longer applicable for merchandise which is the product of World Trade
Organization (WTO) member countries. Quota and visa requirements are the
result of international agreements that are subject to frequent renegotiations
and changes. To obtain the most current information on quota and visa
requirements applicable to this merchandise, we suggest you check, close to
the time of shipment, the “Textile Status Report for Absolute Quotas” which
is available on our web site at www.cbp.gov. For current information regard-
ing possible textile safeguard actions on goods from China and related issues,
we refer you to the web site of the Office of Textiles and Apparel of the
Department of Commerce at otexa.ita.doc.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, contact National
Import Specialist Kenneth Reidlinger at 646–733–3053.
Sincerely,
R
OBERT B. SWIERUPSKI
Director
National Commodity Specialist Division
34
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT C]
HQ H257790
CLA-2 RR:CTF:TCM H257790 EGJ
CATEGORY: CLASSIFICATION
TARIFF NO.: 7117.90.75
F
ELICIA L. NOWELS,ESQ.
A
KERMAN, LLP
106 E
AST COLLEGE AVE., SUITE 1200
T
ALLAHASSEE, FL 323201
Re: Revocation of NY N022480 and Modification of NY N059109; Classifi-
cation of Textile and Plastic Necklaces
D
EAR MS.NOWELS:
This is in reference to New York Ruling Letter (NY) N022480, dated
February 13, 2008, which was issued to your client, Eagles Wings, concerning
the tariff classification of a plastic and textile necklace under the Harmonized
Tariff Schedule of the United States (HTSUS).
We have reviewed NY N022480 and find it to be in error. For the reasons
set forth below, we hereby revoke NY N022480 and modify NY N059109,
dated May 29, 2009, which concerned the tariff classification of a substan-
tially similar necklace.
1
FACTS:
In NY N022480, the subject necklace was described as follows:
The submitted sample Style 6903 Georgia Titan Necklace is a textile
necklace made of woven nylon fabric surrounding a silicone/plastic core
with a plastic clasp and two silicone stations with the letter G. The
necklace is used to show support of the Georgia Titans Team.
According to additional documentation which you provided under separate
cover dated March 22, 2012, the plastic components weigh substantially more
than the textile component. The plastic components also cost substantially
more than the textile component. The plastic components are both decorative
and functional, because the plastic forms the structure of the necklace and
the two plastic Georgia Titans beads add to the visual appeal. The textile
component, however, has a much greater visible surface area because it
completely covers the plastic core. The textile component is also highly
decorative because it is covered in Georgia Titans logos. A picture of the
subject necklace is provided below:
1
In NY N059109, the necklace is described as follows: “The silicon necklace, style number
1004153 is a 22 inch long silicon tube surrounded by a woven nylon fabric. This item has a
plastic clip means of closure and contains 7% polyamide, 6% Germinium and trace mineral.”
35
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
ISSUE:
Is the necklace classified under heading 6217, HTSUS, as a textile acces-
sory, or under heading 7117, HTSUS, as imitation jewelry?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods
shall be determined according to the terms of the headings of the tariff
schedule and any relative section or chapter notes. In the event that the
goods cannot be classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRIs 2 through 6 may
then be applied in order. Under GRI 6, the classification of goods in the
subheadings of a heading shall be determined according to the terms of those
subheadings and any related subheading notes and, mutatis mutandis,to
GRIs 1 through 5.
The HTSUS provisions at issue are as follows:
6217 Other made up clothing accessories; parts of garments or of cloth-
ing accessories, other than those of heading 6212:
6217.10 Accessories:
Other:
6217.10.95 Other:
***
7117 Imitation jewelry:
7117.90 Other:
Other:
Valued over twenty cents per dozen pieces or
parts:
Other:
7117.90.75 Of plastics:
7117.90.90 Other:
***
Note 1 to Chapter 62 states as follows:
This chapter applies only to made up articles of any textile fabric other
than wadding, excluding knitted or crocheted articles (other than those of
heading 6212).
***
Note 3(g) to Chapter 71 states as follows:
3. This Chapter does not cover:
(g) Goods of section XI (textiles and textile articles)
***
Note 9 to Chapter 71 states as follows:
9. For the purposes of heading 7113, the expression “articles of jewelry”
means:
36
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(a) Any small objects of personal adornment (for example, rings,
bracelets, necklaces, brooches, earrings, watch chains, fobs,
pendants, tie pins, cuff links, dress studs, religious or other
medals and insignia); and
(b) Articles of personal use of a kind normally carried in the pocket,
in the handbag or on the person (for example, cigar or cigarette
cases, snuff boxes, cachou or pill boxes, powder boxes, chain
purses or prayer beads).
These articles may be combined or set, for example, with natural or
cultured pearls, precious or semiprecious stones, synthetic or recon-
structed precious or semiprecious stones, tortoise shell, mother-of-pearl,
ivory, natural or reconstituted amber, jet or coral.
***
Note 11 to Chapter 71 states as follows:
11. For the purposes of heading 7117, the expression “imitation jewelry”
means articles of jewelry within the meaning of paragraph (a) of note
9 above (but not including buttons or other articles of heading 9606, or
dress combs, hair slides or the like, or hairpins, of heading 9615), not
incorporating natural or cultured pearls, precious or semiprecious
stones (natural, synthetic or reconstructed) nor (except as plating or
as minor constituents) precious metal or metal clad with precious
metal.
***
GRI 3 provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima
facie, classifiable under two or more headings, classification shall be
effected as follows:
(a) The heading which provides the most specific description shall be
preferred to headings providing a more general description.
However, when two or more headings each refer to part only of
the materials or substances contained in mixed or composite
goods or to part only of the items in a set put up for retail sale,
those headings are to be regarded as equally specific in relation
to those goods, even if one of them gives a more complete or
precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or
made up of different components, and goods put up in sets for
retail sale, which cannot be classified by reference to 3(a), shall
be classified as if they consisted of the material or component
which gives them their essential character, insofar as this
criterion is applicable.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they
shall be classified under the heading which occurs last in
numerical order among those which equally merit consideration.
***
The Explanatory Notes (EN) to the Harmonized Commodity Description
and Coding System represent the official interpretation of the tariff at the
international level. While neither legally binding nor dispositive, the ENs
provide a commentary on the scope of each heading of the HTSUS and are
generally indicative of the proper interpretation of these headings at the
37
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
international level. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23,
1989).
The ENs to GRI 3(b) provide, in pertinent part, that:
(VII) In all these cases the goods are to be classified as if they consisted
of the material or component which gives them their essential
character , insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as be-
tween different kinds of goods. It may, for example, be determined
by the nature of the material or component, its bulk, quantity,
weight or value, or by the role of a constituent material in relation
to the use of the goods.
***
EN 62.17 provides, in pertinent part, as follows:
This heading covers made up textile clothing accessories, other than
knitted or crocheted, not specified or included in other headings of this
Chapter or elsewhere in the Nomenclature. The heading also covers parts
of garments or of clothing accessories, not knitted or crocheted, other
than parts of articles of heading 62.12.
The heading covers, inter alia:
(1) Dress shields, usually of rubberized fabric or of rubber covered
with textile material. Dress shields wholly of plastics or of rubber
are excluded (headings 39.26 and 40.15 respectively).
(2) Shoulder or other pads. These are usually made of wadding,
felt, or textile waste covered with textile fabric. Shoulder and
other pads consisting of rubber (usually cellular rubber) not
covered with textile material are excluded (heading 40.15).
(3) Belts of all kinds (including bandoliers) and sashes (e.g.,
military or ecclesiastical), of textile fabric, whether or not
elastic or rubberized, or of woven metal thread. These articles are
included here even if they incorporate buckles or other fittings of
precious metal, or are decorated with pearls, precious or semi-
precious stones (natural, synthetic or reconstructed).
(4) Muffs, including muffs with mere trimmings of furskin or
artificial fur on the outside ...
***
Note 3(g) to Chapter 71 states that goods of Section XI (Chapters 50 – 63)
are excluded from classification in Chapter 71. If the necklace is classifiable
as a textile accessory of heading 6217, HTSUS, then it is excluded from
classification as imitation jewelry of heading 7117, HTSUS. Therefore, we
will first examine the subject necklace in the context of heading 6217, HT-
SUS.
Note 2 to Chapter 62 states that the Chapter only applies to articles made
up of textile fabrics, other than knitted or crocheted fabrics. According to the
ENs to heading 62.17, a textile accessory may still be classified in the heading
if it has minor components of a different constituent material. For example,
EN 62.17 states that if a belt has a clasp or fittings of metal, it remains
classified in Chapter 62. As such, the necklace could still be classified in
heading 6217, HTSUS, even if it has a clasp or fitting of a material other than
textile.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
While the necklace has a plastic clasp, it also has a plastic core underneath
of the fabric, as well as two large plastic beads. The plastic core gives the
necklace its shape. As opposed to a metal clasp or fitting for a textile belt, the
plastic components play too great a role to be covered by a heading for articles
made up of textiles. As such, the necklace is not classifiable in heading 6217,
HTSUS.
Heading 7117, HTSUS, provides for imitation jewelry. Note 11 to Chapter
71 defines imitation jewelry as articles of jewelry which do not incorporate
natural or cultured pearls, precious or semiprecious stones, precious metal,
or metal clad with precious metal. Note 9(a) to Chapter 71 states that
“articles of jewelry” means small objects of personal adornment, such as
necklaces, bracelets and rings. As the instant merchandise is a necklace
which does not incorporate pearls, precious stones or precious metal, it is
classifiable as imitation jewelry of heading 7117, HTSUS.
The subheadings to heading 7117, HTSUS, are broken out according to the
constituent material. We note that the instant necklace consists of both
textile and plastics. As such, the necklace is a composite good, and we must
apply GRI 3(b) to determine which subheading covers the necklace.
According to GRI 3(b), a composite good is classified according to the
constituent material which imparts the good’s essential character. In order to
identify a composite good’s essential character, the U.S. Court of Interna-
tional Trade (CIT) has applied the factors listed in EN VIII to GRI 3(b) which
are “the nature of the material or component, its bulk, quantity, weight or
value, or by the role of a constituent material in relation to the use of the
goods.” The Home Depot v. United States, 427 F. Supp. 2d 1278, 1293 (Ct. Int’l
Trade 2006). With regard to the component which imparts the essential
character, the CIT has stated it is “that which is indispensable to the struc-
ture, core or condition of the article, i.e. what it is.” Id. citing A.N. Deringer,
Inc. v. United States, 66 Cust. Ct. 378, 383 (1971).
Turning to the instant necklace, we note that the plastic components weigh
more and cost more than the textile components. The plastic components
provide shape and structure to the necklace. The plastic components are both
decorative and functional, while the textile component is only decorative.
However, the textile component covers more of the visible surface area than
the plastic components.
Based upon all of these factors, we find that the plastic components impart
the essential character to the instant necklace. As such, the instant necklace
is classified under subheading 7117.90.75, HTSUS, as imitation jewelry of
plastics.
HOLDING:
By application of GRI 1 (Note 9 and Note 11 to Chapter 71), GRI 3(b) and
GRI 6, the necklace is classified under subheading 7117.90.75, HTSUS, as
“Imitation jewelry: Other: Other: Valued over twenty cents per dozen pieces
or parts: Other: Of plastics.” The 2015 column one, general rate of duty is
free.
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 www.usitc.gov.
39
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
EFFECT ON OTHER RULINGS:
NY N022480, dated February 13, 2008, is hereby revoked.
NY N059109, dated May 29, 2009, is hereby modified with regard to the
plastic and textile necklace.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
◆
REVOCATION OF A RULING LETTER AND REVOCATION
OF TREATMENT RELATING TO THE TARIFF
CLASSIFICATION OF AN ARCHERY TARGET HANDLE
INSERT
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of revocation of a ruling letter and revocation of
treatment relating to the tariff classification of an archery target
handle insert.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§1625 (c)), as amended by Section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub.L. 103–182, 107 Stat. 2057), this Notice advises inter-
ested parties that U.S. Customs and Border Protection (CBP) is
revoking a ruling letter relating to the tariff classification of an
archery target handle under the Harmonized Tariff Schedule of the
United States (HTSUS). CBP is also revoking any treatment previ-
ously accorded by CBP to substantially identical transactions. Notice
of the proposed action was published in the Customs Bulletin, Vol. 49,
No. 20, on May 20, 2015. No comments were received in response to
the notice.
EFFECTIVE DATE: This action is effective for merchandise
entered or withdrawn from warehouse for consumption on or after
September 28, 2015.
FOR FURTHER INFORMATION CONTACT: Beth Jenior, Tariff
Classification and Marking Branch: (202) 325–0347.
40
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These concepts
are premised on the idea that in order to maximize voluntary com-
pliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. §1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and to provide any other information neces-
sary to enable CBP to properly assess duties, collect accurate statis-
tics and determine whether any other applicable legal requirement is
met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
§1625(c)(1)), as amended by section 623 of Title VI, a notice was
published in the Customs Bulletin, Volume 49, No. 20, on May 20,
2015, proposing to revoke New York Ruling Letter (NY) N209619,
dated April 11, 2012, in which CBP determined that the archery
target handle insert was classified in subheading 3926.90.25 of the
Harmonized Tariff Schedule of the United States (HTSUS), which
provides, in pertinent part, for: “Handles and knobs, not elsewhere
specified or included, of plastics.” No comments were received in
response to this notice.
As stated in the proposed notice, this revocation will cover any
rulings on the subject merchandise which may exist but have not
been specifically identified. CBP has undertaken reasonable efforts to
search existing databases for rulings in addition to the ruling iden-
tified above. Any party who has received an interpretive ruling or
decision (i.e., ruling letter, internal advice memorandum or decision
or protest review decision) on the merchandise subject to this notice
should have advised CBP during the comment period.
Similarly, pursuant to section 625 (c)(2), Tariff Act of 1930, as
amended (19 U.S.C. 1625 (c)(2)), CBP is revoking any treatment
41
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
previously accorded by CBP to substantially identical transactions.
Any person involved in substantially identical transactions should
have advised CBP during this notice period. An importer’s failure to
advise CBP of substantially identical transactions or of a specific
ruling not identified in this notice, may raise issues of reasonable care
on the part of the importer or its agents for importations of merchan-
dise subsequent to the effective date of this final decision.
Pursuant to 19 U.S.C. §1625(c)(1), CBP is revoking NY N209619, in
order to reflect the proper classification of the archery target handle
insert under subheading 9506.99.05, HTSUS, which provides, in per-
tinent part, for “Archery articles and equipment and parts and ac-
cessories thereof,” according to the analysis contained in HQ
H229978, set forth as an attachment to this document. Additionally,
pursuant to 19 U.S.C. §1625(c)(2), CBP is revoking any treatment
previously accorded by CBP to substantially identical transactions.
In accordance with 19 U.S.C. §1625(c), this ruling will become
effective 60 days after publication in the Customs Bulletin.
Dated: July 6, 2015
J
ACINTO JUAREZ
for
MYLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachment
42
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
HQ H229978
July 6, 2015
CLA-2 OT:RR:CTF:TCM H229978 EGJ
CATEGORY: Classification
TARIFF NO.: 9506.99.05
E
RIKKA BERGSTEN
OAS HOLDINGS INC. DBA SOURCE ONE ENTERPRISES
314 WEST SUPERIOR ST., #502
D
ULUTH, MN 55802
Re: Revocation of NY N209619; Tariff Classification of the GripPit™ Handle
Insert for the Block® Archery Target
D
EAR MS.BERGSTEN:
This is in response to your request dated May 3, 2012, asking for recon-
sideration of New York Ruling Letter (NY) N209619, dated April 11, 2012. In
NY N209619, U.S. Customs and Border Protection (“CBP”) classified the
handle insert, also identified as the “Block® handle,” for a portable archery
target (the handle insert) under subheading 3926.90.25 of the Harmonized
Tariff Schedule of the United States (HTSUS), as handles of plastics which
are not provided for elsewhere. Upon further review, we find NY N209619 to
be in error. For the reasons set forth below, we hereby revoke NY N209619.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as
amended by section 623 of Title VI, a notice of proposed action was published
on May 20, 2015, in the Customs Bulletin, Vol. 49, No. 20. No comments were
received in response to this notice.
FACTS:
The Block® brand of archery targets consists of different styles of layered
polyethylene foam targets. All of the Block® archery targets are portable. The
GripPit™ handle insert is embedded into the top of the Block® Black and the
Block® Black Crossbow styles of targets. These styles of targets have four
sides which can stop field tip, broadhead and expandable arrows. These two
styles of targets are pictured below:
The GripPit™ handle insert consists of two pieces of plastic which are
custom designed to fit together. During the manufacturing process, the two
43
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
pieces are attached together and are permanently embedded into the target.
The embedded GripPit™ handle insert enables the consumer to lift, carry
and transport the target. The two pieces of the handle insert are pictured
below:
The Block® Black and the Block® Black Crossbow styles of targets are
large and bulky, measuring in size from 16″x12″x16″ to 22″x16″x22″. In spite
of their cumbersome shape and size, they are marketed as being lightweight
and portable. It is the GripPit™ handle insert that enables the consumer to
easily move this target from the home, to the backyard, and to the archery
range. A picture of consumers holding the bulky targets is provided below:
ISSUE:
Is the GripPit™ handle insert classified as an article of plastics in heading
3926, HTUS, or as a part of sports equipment in heading 9506, HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States
(HTSUS) is made in accordance with the General Rules of Interpretation
(GRI). GRI 1 provides that the classification of goods shall be determined
according to the terms of the headings of the tariff schedule and any relative
Section or Chapter Notes. In the event that the goods cannot be classified
44
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
solely on the basis of GRI 1, and if the headings and legal notes do not
otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions under consideration are the following:
3926 Other articles of plastics and articles of other materials of head-
ings 3901 to 3914:
3926.90 Other:
3926.90.25 Handles and knobs, not elsewhere specified or in-
cluded, of plastics
***
9506 Articles and equipment for general physical exercise, gymnastics,
athletics, other sports (including table-tennis) or outdoor games,
not specified or included elsewhere in this chapter; swimming
pools and wading pools; parts and accessories thereof:
Other:
9506.99 Other:
9506.99.05 Archery articles and equipment and parts and
accessories thereof
***
Note 2(y) to Chapter 39 states that:
2. This chapter does not cover:
(t) Articles of chapter 95 (for example, toys, games, sports
equipment)
***
Note 3 to Chapter 95 states that:
3. Subject to note 1 above, parts and accessories which are suitable for
use solely or principally with articles of this chapter are to be classi-
fied with those articles ...
***
The Explanatory Notes (EN) to the Harmonized Commodity Description
and Coding System represent the official interpretation of the tariff at the
international level. While neither legally binding nor dispositive, the ENs
provide a commentary on the scope of each heading of the HTSUS and are
generally indicative of the proper interpretation of these headings at the
international level. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23,
1989).
EN 95.06(B)(11) states, in pertinent part, that:
This heading covers:
(B) Requisites for other sports and outdoor games ... e.g.:
(11) Archery equipment, such as bows, arrows and targets.
***
In NY N209619, we classified the handle insert under subheading
3926.90.25, HTSUS, as a handle of plastics which is not elsewhere specified
or included. However, Note 2(y) to Chapter 39 states that articles of Chapter
95 are excluded from classification in that chapter. As such, if the handle
inserts are classifiable in heading 9506, HTSUS, they cannot be classified in
Chapter 39.
Heading 9506 provides for articles and equipment for sports, as well as
parts and accessories thereof. It is undisputed that archery is a sport, and
45
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
that archery targets constitute equipment for that sport. EN 95.06(B)(11)
states that archery equipment, such as bows, arrows and targets are classi-
fiable in that heading. To be classifiable under heading 9506, HTSUS, we
must determine whether the handle insert is a part or an accessory to the
archery target.
The courts have construed the nature of “parts” under the HTSUS and two
distinct though not inconsistent tests have resulted. See Bauerhin Techs. Ltd.
P’ship. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first,
articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”),
21 C.C.P.A. 322, 324 (1933), requires a determination of whether the im-
ported item is an “integral, constituent, or component part, without which the
article to which it is to be joined, could not function as such article.” Bauer-
hin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second,
set forth in United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), states that an
“imported item dedicated solely for use with another article is a ‘part’ of that
article within the meaning of the HTSUS.” Id. At 779 (citing Pompeo,43
C.C.P.A. 9 at 13.) Under either line of cases, an imported item is not a part if
it is “a separate and distinct commercial entity.” Id.
As stated above, the Willoughby test for parts of an article is whether the
article could still function as such article without the part. 21 C.C.P.A. at 324.
The handle insert is used with the Block® Black and the Block® Black
Crossbow styles of targets. These targets are marketed as lightweight and
portable targets, in spite of their bulky shape and size. We find that the
Block® Black and the Block® Black Crossbow could not function as portable
targets without the GripPit™ handle insert. As such, the GripPit™ handle
insert satisfies the Willoughby test for parts. Id.
Next, the Pompeo test for parts states that the part must be dedicated
solely for use with the article at importation. 43 C.C.P.A. at 14. The handle
insert is custom designed to be permanently embedded into the Block®
archery targets during the manufacturing process. The handle insert has no
other use. As such, the GripPit™ handle insert is dedicated solely for use with
an archery target at importation, and it satisfies the Pompeo test for parts.
Id.
Note 3 to Chapter 95 states that, subject to the exclusions of Note 1, parts
and accessories of goods of Chapter 95 must be classified with those goods if
they are solely or principally used with them. The handle inserts are parts of
the Block® archery targets, and they are solely used with the Block® archery
targets. The handle inserts are not subject to any of the exclusions listed in
Note 1 to Chapter 95. As such, the handle inserts are properly classified as
parts of sports equipment under heading 9506, HTSUS. Note 2(y) to Chapter
39 excludes the handle inserts from classification in heading 3926, HTSUS.
HOLDING:
By application of GRI 1 (Note 3 to Chapter 95) and GRI 6, the GripPit™
Block Archery Target handle insert is classified under subheading
9506.99.05, HTSUS, which provides for “Articles and equipment for general
physical exercise, gymnastics, athletics, other sports (including table-tennis)
or outdoor games, not specified or included elsewhere in this chapter; swim-
ming pools and wading pools; parts and accessories thereof: Other: Other:
46
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Archery articles and equipment and parts and accessories thereof.” The 2015
column one, general rate of duty is free.
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 www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N209619, dated April 11, 2012, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60
days after publication in the Customs Bulletin.
Sincerely,
J
ACINTO JUAREZ
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
◆
GENERAL NOTICE
19 CFR PART 177
PROPOSED MODIFICATION OF ONE LETTER
PROPOSED REVOCATION OF ONE RULING LETTER AND
PROPOSED REVOCATION OF TREATMENT RELATING TO
THE TARIFF CLASSIFICATION OF PLASTIC HEAT
SHRINK TUBING
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of proposed modification, proposed revocation of
ruling letter, and proposed revocation of treatment relating to the
classification of plastic heat shrink tubing.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§ 1625 (c)), this notice advises interested parties that U.S. Customs
and Border Protection (“CBP”) is proposing to revoke one letter and
modify another ruling letter relating to the tariff classification of
plastic heat shrink tubing under the Harmonized Tariff Schedule of
the United States (“HTSUS”). CBP also proposes to revoke any treat-
ment previously accorded by it to substantially identical transactions.
Comments are invited on the correctness of the intended actions.
DATES: Comments must be received on or before August 28, 2015.
ADDRESSES: Written comments are to be addressed to U.S.
Customs and Border Protection, Office of International Trade,
Regulations and Rulings, Attention: Commercial Trade and
47
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Regulations Branch, 90K St NE, Washington, D.C., 20229–1177.
Submitted comments may be inspected at U.S. Customs and
Border Protection, 90K Street NE, Washington, D.C., 20229–1177,
during regular business hours. Arrangements to inspect submitted
comments should be made in advance by calling Mr. Joseph Clark
at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT: Nerissa Hamilton-
vom Baur, Tariff Classification and Marking Branch, at (202)
325–0104.
SUPPLEMENTARY INFORMATION:
Background
On December 8, 1993, Title VI (“Customs Modernization”) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”) became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These con-
cepts are premised on the idea that in order to maximize voluntary
compliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. § 1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and to provide any other information neces-
sary to enable CBP to properly assess duties, collect accurate statis-
tics and determine whether any other applicable legal requirement is
met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §
1625(c)(1)), as amended by section 623 of Title VI, this notice advises
interested parties that CBP intends to modify one ruling letter and
revoke one ruling letter pertaining to the tariff classification of heat
shrink tubing. Although in this notice, CBP is specifically referring to
the modification of New York Ruling Letter (“NY”) H80297, dated
May 31, 2001 (Attachment A) and revocation of NY 843391, dated
July 21, 1989 (Attachment B), this notice covers any rulings on this
merchandise which may exist but have not been specifically identi-
fied. CBP has undertaken reasonable efforts to search existing data-
bases for rulings in addition to the ones identified. No further rulings
have been found. Any party who has received an interpretive ruling or
48
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
decision (i.e., a ruling letter, internal advice memorandum or decision
or protest review decision) on the merchandise subject to this notice
should advise CBP during this notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19 U.S.C.
§1625(c)(2)), as amended by section 623 of Title VI, CBP intends to
revoke any treatment previously accorded by CBP to substantially
identical transactions. Any person involved in substantially identical
transactions should advise CBP during this notice period. An import-
er’s failure to advise CBP of substantially identical transactions or of
a specific ruling not identified in this notice may raise issues of
reasonable care on the part of the importer or its agents for impor-
tations of merchandise subsequent to the effective date of the final
decision on this notice.
In NY H80297 and NY 843391, CBP classified certain plastic heat
shrink tubing under heading 8546, HTSUS, as “electrical insulators”.
It is now CBP’s position that the tubing made from polyethylene are
properly classified in subheading 3926.90.99, HTSUS, which provides
for: “Other articles of plastic and articles of other materials of head-
ings 3901 to 3914: Other: Other.”
Pursuant to 19 U.S.C. § 1625(c)(1), CBP is proposing to modify NY
H80297 (Attachment A) and revoke NY 843391 (Attachment B), to
reflect the proper classification of this merchandise according to the
analysis contained in the proposed Headquarters Ruling Letter
(“HQ”) H118307 (Attachment C). Additionally, pursuant to 19 U.S.C.
§ 1625(c)(2), CBP intends to revoke any treatment previously ac-
corded by CBP to substantially identical transactions. Before taking
this action, consideration will be given to any written comments
timely received.
Dated: July 6, 2015
I
EVA K. O’ROURKE
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachments
49
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT A]
NY H80297
May 31, 2001
CLA-2–85:RR:NC:1:112 H80297
CATEGORY: Classification
TARIFF NO.: 8546.90.0000; 8544.60.6000
MR.BRENT REIDER
INTERNATIONAL TRADE GROUP,INC.
2920 N
ORTH STAR ROAD
COLUMBUS, OH 43221–2961
RE: The tariff classification of insulated tubing from Hong Kong
D
EAR MR.REIDER:
In your letter dated April 22, 2001, on behalf of Fi-Shock, Inc., you re-
quested a tariff classification ruling.
As indicated by the submitted samples and information, there are two
different types of tubing. Insultube 500–546 consists of a 50-foot length of
polyethylene tubing that is used for insulating electrical conductor. Insultube
500–551 and 500–552 consist of the same type of tubing with an 8300 volt
electrical conductor inside.
The applicable subheading for the Insultube 500–546 will be 8546.90.0000,
Harmonized Tariff Schedule of the United States (HTS), which provides for
electrical insulators of any material: Other. The rate of duty will be Free. The
applicable subheading for the Insultube 500–551 and 500–552 will be
8544.60.6000, HTS, which provides for other electric conductors, for a voltage
exceeding 1,000 V: Other: Other. The rate of duty will be 3.2 percent ad
valorem.
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 David Curran at 212–637–7049.
Sincerely,
R
OBERT B. SWIERUPSKI
Director
National Commodity Specialist Division
50
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT B]
NY 843391
JUL 21, 1989
CLA-2–85:S:N:N1B:112 843391
CATEGORY: Classification
TARIFF NP: 8546.90.0000 ADD/CVD * (EN)
MR.HENRY HOFHEIMER
EL-TECH TECHNOLOGY,INC.
7W
OODLAND AVENUE
LARCHMONT,NEW YORK 10538
RE: The Tariff Classification of polyethylene heat-shrinkable products from
West Germany.
D
EAR MR.HOFHEIMER:
This classification decision under the Harmonized Tariff Schedule of the
United States (HTS) is being issued in accordance with the provisions of
Section 177 of the Customs Regulations (19 C.F.R. 177).
DATE OF INQUIRY: July 10, 1989.
DESCRIPTION OF MERCHANDISE: The polyethylene heat-shrinkable
products are used to insulate telecommunication cable splices and seal the
ends of PVC cables.
Their configuration will vary according to their specific requirements.
HTS PROVISION: Electrical insulators of any material:
Other...
HTS SUBHEADING: 8546.90.0000 ADD/CVD *(EN)
RATE OF DUTY: 3.7 percent ad valorem.
A copy of this ruling should be attached to the entry documents filed at the
time this merchandise is imported. If the documents have been filed without
a copy, this ruling should be brought to the attention of the Customs officer
handling the transaction.
Sincerely,
J
EAN F. MAGUIRE
Area Director
New York Seaport
51
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT C]
HQ H118307
OT:RR:CTF:TCM H118307 HvB
CATEGORY: Classification
TARIFF NO.: 3926.90.99
B
RENT REIDER
INTERNATIONAL TRADE GROUP,INC.
2920 N
ORTH STAR ROAD
COLUMBUS, OH 43221–2961
RE: Modification of NY H80297 and Revocation of NY 843391; Classifica-
tion of plastic heat-shrink tubing.
D
EAR MR.REIDER:
This letter is to inform you that U.S. Customs and Border Protection (CBP)
has reconsidered New York Ruling Letter (NY) H80297, issued to you on May
31, 2001, on the classification of Insultube 500–546 under the Harmonized
Tariff Schedule of the United States (HTSUS).
We have reviewed NY H80297 and have found it to be partially in error. For
the reasons set forth below, we hereby modify NY H80297 with respect to the
Insultube 500–546, and revoke NY 843391, dated July 21, 1989, in which
CBP classified similar merchandise.
FACTS:
The subject merchandise is heat-shrink tubes made from polyethylene. NY
H80297 described the merchandise as consisting of “a 50-foot length of poly-
ethylene tubing that is used for insulating electrical conductor.” In NY
843391, CBP stated that the subject merchandise consisted of “polyethylene
heat-shrinkable products used to insulate telecommunication cable splices
and seal the ends of PVC cables.”
ISSUE:
Whether the heat-shrink tubes are classified in heading 3926, HTSUS,
which provides for “Other articles of plastics and articles of other materials
of headings 3901 to 3914” or, in heading 8546, HTSUS, which provides for
“Electrical insulators of any material”?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules
of Interpretation (GRI). GRI 1 provides that classification shall be deter-
mined according to the terms of the headings of the tariff schedule and any
relative section or chapter notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and legal notes do
not otherwise require, the remaining GRI may then be applied.
The following 2015 HTSUS provisions are under consideration:
3926 Other articles of plastics and articles of other materials of head-
ings 3901 to 3914
***
3926.90 Other
52
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
8546 Electrical insulators of any material
***
8546.90 Other
The Notes to Chapter 39 (which include heading 3926) provide in pertinent
part:
2. This chapter does not cover:
...
(s) Articles of section XVI (machines and mechanical or electrical appli-
ances[.]
The Harmonized Commodity Description and Coding System Explanatory
Notes (EN), constitute the official interpretation at the international level.
While neither legally binding nor dispositive, the EN provide a commentary
on the scope of each heading of the HTSUS and are generally indicative of the
proper interpretation of the headings. It is Customs and Border Protection’s
(CBP) practice to follow, whenever possible, the terms of the ENs when
interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August
23, 1989).
The ENs to heading 8486, HTSUS, provide in relevant part:
Insulators of this heading are used for the fixing, supporting or guiding of
electric current conductors while at the same time insulating them elec-
trically from each other, from earth, etc.
***
Usually there is a relation between the size of the insulator and the
voltage (large for high voltages, smaller for low voltages). Similarly, the
shape of the various types of insulators is influenced by electric, thermic
and mechanical considerations. The external surface is very smooth in
order to prevent the formation of deposits of non-insulating materials,
such as water, salts, dusts, oxides and smoke. Insulators are often given
bell, accordion, petticoat, grooved, cylinder or other shapes. Certain types
are constructed in such a way that when in position they may contain oil
to prevent contamination of the surface by conducting materials.
Insulators may be made of any insulating material, usually very hard and
non-porous, e.g., ceramic material (porcelain, steatite), glass, fused ba-
salt, hardened rubber, plastics or compounded insulating materials. They
may contain fixing devices (e.g., metal brackets, screws, bolts, clips, laces,
slings, pins, cross pieces, caps, rods, suspension or carrying clamps).
Insulators equipped with metal horns or guard shields or other devices to
form lightning arresters are excluded (heading 85.35).
Insulators are used on outdoor cables, e.g., in telecommunications, power
networks, electrical traction systems (railway, tramway, trolleybus, etc.),
and also for indoor installations or on certain machines and appliances.
***
The instant merchandise consists of plastic tubing that is used to provide
a protective seal or jacket. Note 2(s) to Chapter 39, Section VII, HTSUS,
excludes “[a]rticles of Section XVI”, which includes heading 8546, HTSUS.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Accordingly, before considering whether the articles are classifiable in head-
ing 3926, HTSUS, as a plastic article, it must first be determined whether the
subject merchandise is classifiable as an electrical appliance of Section XVI,
in heading 8546, HTSUS, which provides for “electrical insulators.”
In order to be classified as an electrical insulator of heading 8546, HTSUS,
an article must serve two functions: (1) it must fix, support, or guide an
electrical current, and (2) it must also insulate the electric current conductors
from each other. See Headquarters Ruling Letter (HQ) 088157, dated July 2,
1992, citing to HQ 089276, dated July 24, 1991. See EN 85.46. Furthermore,
EN 85.46 lists three types of electrical insulators: suspension insulators, rigid
insulators, and leading-in insulators. A picture of the subject Insultube
500–546, which is currently discontinued, is available on amazon.com.
1
We
note that the instant plastic tubing does not share physical characteristics
nor, is it a device that fixes or guides electrical currents. Instead, the subject
merchandise is used to form a protective jacket for wires that are buried
underground. Thus, we find that the instant articles are not described by
heading 8546, HTSUS.
CBP has previously classified substantially similar merchandise in head-
ing 3926, HTSUS. In HQ 082619, dated February 26, 1990, CBP was pre-
sented with polyethylene and ethylene vinyl acetate heat shrinkable tubing,
and found that the articles were classifiable in heading 3926. See also HQ
082700, dated February 15, 1990, describing the tubing as “designed for
corrosion protection and sealing of joint connections.” In NY E89483, dated
November 19, 1999, CBP classified heat shrink tubing described as “noncon-
ductive polyolefin... designed to provide protection or the wires in a variety of
electric and electronic appliances” in heading 3926. Similarly, we classified
shrinkable PVC tubes in heading 3926. See NY J81242, dated February 26,
2003.
In light of the foregoing, we find that the heat shrinkable tubing at issue is
classified in heading 3926, HTSUS, specifically subheading 3926.90.99,
which provides for “Other articles of plastics and articles of other materials
of headings 3901 to 3914: Other: Other.” The 2015 general duty rate is 5.3%
ad valorem.
HOLDING:
By application of GR1 and pursuant to Note 2(s) of Chapter 39, Section VII,
the subject heat shrink tubes are classifiable under heading 3926, specifically
subheading 3926.90.99, which provides for “Other articles of plastics and
articles of other materials of headings 3901 to 3914: Other: Other.” The 2015
duty rate is 5.3% ad valorem.
EFFECT ON OTHER RULINGS:
NY H80297, dated May 31, 2001, is hereby modified with respect to the
Insultube 500–546 described therein.
1
http://www.amazon.com/Fi-Shock-500–546-Insultube-Discontinued-Manufacturer/dp/
B000IK0MCS (June 6, 2015)
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
NY 843391, dated July 21, 1989, is hereby revoked.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
◆
CORRECTION OF A PROPOSED RULING LETTER
RELATING TO THE PROPOSED MODIFICATION AND
PROPOSED REVOCATION OF TREATMENT RELATING TO
THE TARIFF CLASSIFICATION OF A FISHING ROD
HOLDER WITH BOAT MOUNT
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of a correction to a ruling letter for the proposed
modification of and proposed revocation of treatment relating to the
tariff classification of a certain fishing rod holder with boat mount.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§ 1625(c)), as amended by section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-
ested parties that U.S. Customs and Border Protection (“CBP”) is
correcting a proposed ruling letter that was published in a previous
notice on March 4, 2015, in the Customs Bulletin, Volume 49, Number
9, by clarifying that the proposed ruling letter is a modification and
not a revocation.
FOR FURTHER INFORMATION CONTACT: Robert Shervette,
Office of International Trade, Tariff Classification and Marking
Branch, at (202) 325–0274.
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”), become effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These con-
cepts are premised on the idea that in order to maximize voluntary
compliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
55
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
the public. with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. § 1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and to provide any other information neces-
sary to enable CBP to properly assess duties, collect accurate statis-
tics and determine whether any other applicable legal requirement is
met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §
1625(c)(1)), as amended by section 623 of Title VI, this notice corrects
a notice published on March 4, 2015, in the Customs Bulletin Volume
49, Number 9 and advises interested parties that CBP is correcting
the proposed ruling letter listed in this previous notice. In the March
4, 2015, notice, the proposed ruling letter labeled as “HQ H240612”,
stated in the EFFECTS ON OTHER RULINGS section that “NY
R00811, dated September 16, 2004, is revoked.” This section is cor-
rected by changing the term “revoked” to “modified” such that it reads
“NY R00811, dated September 16, 2004, is modified.”
The corrected proposed ruling letter, HQ H240612, is set forth as an
attachment to this document.
Dated: June 1, 2015
A
LLYSON MATTANAH
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
56
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
HQ H240612
CLA-2 OT:RR:CTF:TCM H240612 RES
CATEGORY: Classification
TARIFF NO.: 3926.90.99
S
USAN LAKE
SCOTTY FISHING &MARINE PRODUCTS
2065 HENRY AVE.WEST,
SIDNEY V. C. , C ANADA V81 5Z6
RE: Modification of NY R00811
D
EAR MS.LAKE:
This is in regard to New York (“NY”) Ruling Letter NY R00811, issued to
you on September, 16, 2004, regarding the classification of a fishing rod
holder with a boat mounting device, under the Harmonized Tariff Schedule of
the United States (“HTSUS”). In NY R00811, Customs and Border Protection
(“CBP”) classified the articles as fishing rod accessories, under heading 9507,
HTSUS. We have reconsidered this ruling and determined that the articles
are properly classified under heading 3926, HTSUS, as other articles of
plastic.
FACTS:
The following facts were set forth in NY R00811:
The molded plastic fishing rod holder, model 230 Rod Holder, holds a
fishing rod while actively fishing. The rod holder attaches to a boat with
a model 241 Side/Deck Mount that is permanently screwed to the boat.
The website for Scotty Fishing and Marine Products describes the products
this way:
Scotty’s most popular value priced, positive locking, open style rod holder.
It’s universal cradle holds almost any reel style and has a front locking
ring to prevent rod loss when travelling. Manufactured with fibre rein-
forced engineering grade nylon, the Power lock offers strength, resilience
and reliability.
This Power lock includes a No. 241 Side / Deck Mount which allows
mounting on a flat deck surface or on the side of a gunnel or transom.
Power lock Interior Diameter: 1.95″
Mount Dimensions: 4″ x2″ x2″
Bolting Dimension: 1 5/16″ x 3 3/16″
http://www.scotty.com/fishing-gear-eguipment/rod-holders/powerlock.htm.
The mount is also sold separately.
ISSUE:
Whether the plastic fishing rod holder is a part or accessory of a fishing rod
of heading 9507, HTSUS, or a plastic article of heading 3926, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI). GRI 1 provides that the classification of goods
shall be “determined according to the terms of the headings and any relative
section or chapter notes.” In the event that the goods cannot be classified
57
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
solely on the basis of GRI 1, and if the headings and legal notes do not
otherwise require, the remaining GRIs 2 through 6 may be applied in order.
GRI 3(b), HTSUS, states, in part, that composite goods consisting of different
components shall be classified as if consisting of that component which gives
the good its essential character.
The following HTSUS provisions are under consideration:
3926 Other articles of plastics and articles of other materials of head-
ings 3901 to 3914:
***
3926.30 Fittings for furniture, coachwork or the like:
3926.30.5000 Other
***
3926.90 Other:
3926.90.99 Other:
3926.90.9980 Other:
*****
9507 Fishing rods, fish hooks and other line fishing tackle; fish landing
nets, butterfly nets and similar nets; decoy “birds” (other than
those of heading 9208 or 9705) and similar hunting or shooting
equipment; parts and accessories thereof:
9507.10.00 Fishing rods and parts and accessories thereof:
***
9507.10.0080 Other:
Note 1(k) to Chapter 95, HTSUS, states that Chapter 95 does not cover
“[p]arts of general use, as defined in Note 2 to Section XV, of base metal
(Section XV), or similar goods of plastics (Chapter 39).”
Note 2 to Section XV, HTSUS, defines parts of general use as the follow-
ing:
Throughout the tariff schedule, the expression “parts of general use”
means:
(a) Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar
articles of other base metals;
(b) Springs and leaves for springs, of base metal, other than clock
or watch springs (heading 9114);
(c) Articles of heading 8301, 8302, 8308 or 8310 and frames and
mirrors, of base metal, of heading 8306
In chapters 73 to 76 and 78 to 82 (but not in heading 7315)
references to parts of goods do not include references to parts of
general use as defined above.
Subject to the preceding paragraph and to note 1 to chapter 83, the
articles of chapter 82 or 83 are excluded from chapters 72 to 76 and
78 to 81.
In understanding the language of the HTSUS, the Explanatory Notes
(ENs) of the Harmonized Commodity Description and Coding System, which
constitute the official interpretation of-the Harmonized System at the inter-
national level, may be utilized. The ENs, although not dispositive or legally
binding, provide a commentary on the scope of each heading, and are gener-
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
ally indicative of the proper interpretation of the HTSUS. See T.D. 89–80, 54
Fed. Reg. 35127 (August 23, 1989).
The EN to GRI 3 states, in pertinent part, the following;
RULE 3 (b)
(VI) This second method relates only to:
***
(iii) Composite goods consisting of different components.
***
(VII) In all these cases the goods are to be classified as if they
consisted of the material or component which gives them their
essential character, insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as
between different kinds of goods. It may, for example, be determined
by the nature of the material or component, its bulk, quantity,
weight or value, or by the role of a constituent material in relation to
the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of
different components shall be taken to mean not only those in which
the components are attached to each other to form a practically
inseparable whole but also those with separable components,
provided these components are adapted one to the other and are
mutually complementary and that together they form a whole which
would not normally be offered for sale in separate parts.
Examples of the latter category of goods are:
(1) Ashtrays consisting of a stand incorporating a removable ash
bowl.
(2) Household spice racks consisting of a specially designed frame
(usually of wood) and an appropriate number of empty spice jars
of suitable shape and size.
As a general rule, the components of these composite goods are put
up in a common packing.
***
The ENs to heading 95.07 provide in pertinent part: This heading covers:
*****
(3) Line fishing rods and tackle. Fishing rods may be of various sizes,
and may be made of various materials (bamboo, wood, metal, glass
fibre, plastics, etc.). They may consist of a single piece or be jointed.
Fishing tackle comprises such items as reels and reel mountings;
artificial bait (e.g., imitation fish, flies, insects or worms) and hooks
mounted with such bait; spinning bait; mounted lines and casts;
fishing floats (cork, glass, quill, etc.) including luminous floats; line
winding frames; automatic striking devices; mounted fishing rings
(other than mounted rings of precious or semi-precious stone); sink-
ers, and fishing rod bells when mounted or attached to external
clamps, clips or other devices.
*****
(Emphases in original).
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
The ENs to 83.02
1
provide in pertinent part:
This heading covers general purpose classes of base metal accessory
fittings and mountings, such as are used largely on furniture, doors,
windows, coachwork, etc. Goods within such general classes remain in
this heading even if they are designed for particular uses (e.g., door
handles or hinges for automobiles). The heading does not, however, ex-
tend to goods forming an essential part of the structure of the article, such
as window frames or swivel devices for revolving chairs.
The heading covers:
***
(C) Mountings, fittings and similar articles suitable for motor vehicles
(e.g., motor cars, lorries or motor coaches), not being parts or accessories
of Section XVII. For example: made up ornamental beading strips; foot
rests; grip bars, rails and handles; fittings for blinds (rods, brackets,
fastening fittings, spring mechanisms, etc.); interior luggage racks; win-
dow opening mechanisms; specialised ash trays; tail-board fastening fit-
tings.
*****
(Emphases in original).
The competing headings for the fishing rod holder with boat mount are
headings 3926 and 9507, HTSUS. Note 1(k) to Chapter 95, HTSUS, excludes
articles from this Chapter if they are considered similar goods of plastic that
would fall under the definition of “parts of general use” as defined in Note 2
to Section XV, HTSUS. In other words, if the fishing rod holder with boat
mount is similar to base metal articles that are considered “parts of general
use”, then it would be excluded from heading 9507. The heading under
consideration in Note 2 to Section XV, would be heading 8302, HTSUS, which
provides in pertinent part for “base metal mountings, fittings and similar
articles suitable for furniture, doors, staircases, windows, blinds, coachwork,
saddlery, trunks, chests, caskets or the like...”
For an article classifiable in Chapter 39 to be similar to a “part of general
use” in heading 8302, it would have to be a plastic mounting, fitting, or
similar article suitable for use on something that is sufficiently similar to the
exemplars enumerated in heading 8302, HTSUS. For instance, in NY
N192872, dated December 6, 2011, we classified plastic articles used on boat
rails to mount an antennae as fittings for boats in heading 3926, HTSUS.
The tariff terms “mountings” and “fittings” are not defined in the HTSUS
or its legislative history. “When a tariff term is not defined in either the
HTSUS or its legislative history, the term’s correct meaning is presumed to be
its common meaning in the absence of evidence to the contrary.” Timber
Prods. Co. v. United States, 515 F.3d 1213, 1219 (Fed. Cir. 2008). In discern-
ing this common meaning, dictionaries, encyclopedias, scientific authorities,
and other reliable information sources may be consulted to construe the
1
The text of heading 8302, HTSUS reads, in pertinent part, as follows: “Base metal
mountings, fittings and similar articles suitable for furniture, doors, staircases,
windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal
hat racks, hat-pegs, brackets and similar fixtures;. . .”
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
meaning of a statute’s words. See Len-Ron Mfg. Co. v. United States, 334 F.3d
1304, 1309 (Fed. Cir. 2003).
Citing various lexicographic sources, CBP noted in HQ 958784, dated May
17, 1996, that the term “mounting” was defined as:
a frame or support, such as, “an undercarriage or part on which a device
(as a motor or an artillery piece) rests in service,” or “an attachment for
an accessory.” Webster’s Ninth New Collegiate Dictionary, pg. 775–776
(1990). Thus, a mounting is generally a component that serves to join two
other parts together.
In regard to “fitting”, in HQ 966001, dated October 14, 2003, citing Web-
ster’s Third New International Dictionary (unabridged; 1961), CBP noted the
definition as:
1 a. something used in fitting up: accessory, adjunct, attachment...b.a
small often standardized part (as a coupling, valve, gauge) entering into
the construction of a boiler, steam, water or gas supply installation or
other apparatus
A “fixture”, is defined in pertinent part as:
1 anything firmly in place[.] 2 any of the fittings or furniture of a house,
store, etc attached to the building and, ordinarily, considered legally a
part of it...
See WEBSTER’S NEW WORLD COLLEGE DICTIONARY 536 (fourth ed.
2007). Hat and coat racks are examples of “fixtures” because they are per-
manently attached to a structure and provide a function of non-permanently
holding another article (hats and coats). See EN(G) to 83.02.
The instant mount and fishing rod holder are a composite good under GRI
3 consisting of a mount and a fitting both made of plastic They are packaged
together and meant to fit one to the other in attachment to the boat. The
plastic mount is a part of general use in that it is a mount. The fishing rod
holder is a fitting for the mount in that it is an attachment to the mount. As
such, the composite good is comprised of parts of general use which together
form a fixture of the boat. Hence, they are excluded from classification in
heading 9507 as accessories to fishing rods.
As the composite good is sold as a fishing rod holder, it is that component
which, in relation to the use of the goods, determines its essential character
under GRI 3(b). Hence, the entire fixture is classified in subheading
3926.90.99, HTSUS, as “[o]ther articles of plastics and articles of other
materials of headings 3901 to 3914: [o]ther. See NY 881978, dated February
13, 1997.
HOLDING:
Pursuant to GRI 1 and Note 1(k) to Chapter 95, the fishing rod holder with
boat mount is classifiable under subheading of 3926.90.99,. HTSUS, as
“[o]ther articles of plastics and articles of other materials of headings 3901 to
3914: [o]ther.” The column one, rate of duty, is 5.3 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 www.usitc.gov.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
EFFECTS ON OTHER RULINGS:
NY R00811, dated September 16, 2004, is modified.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
◆
PROPOSED MODIFICATION OF ONE RULING LETTER
AND REVOCATION OF TREATMENT RELATING TO THE
TARIFF CLASSIFICATION OF FILLER PAPER,
COMPOSITION NOTEBOOKS, SPIRAL NOTEBOOKS, AND
WIRELESS NOTEBOOKS, AND TO THE ELIGIBILITY OF
FILLER PAPER FOR PREFERENTIAL TARIFF
TREATMENT UNDER NAFTA
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of proposed modification of one ruling letter and
revocation of treatment relating to the tariff classification of filler
paper, composition notebooks, spiral notebooks, and wireless note-
books, and to the eligibility of filler paper for preferential tariff treat-
ment under the North American Free Trade Agreement (NAFTA).
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§1625(c)), as amended by section 623 of title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-
ested parties that U.S. Customs and Border Protection (CBP) intends
to modify one ruling concerning the tariff classification of filler paper,
composition notebooks, spiral notebooks, and wireless notebooks un-
der the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), as well as the eligibility of filler paper for preferential
treatment under NAFTA. Similarly, CBP intends to revoke any treat-
ment previously accorded by CBP to substantially identical transac-
tions. Comments are invited on the correctness of the proposed ac-
tions.
DATES: Comments must be received on or before August 28, 2015.
ADDRESSES: Written comments are to be addressed to the U.S.
Customs and Border Protection, Office of International Trade,
Regulations & Rulings, Attention: Trade and Commercial
Regulations Branch, 90 K St., NE, 10th Floor, Washington, DC
20229–1179. Submitted comments may be inspected at the address
stated above during regular business hours. Arrangements to
62
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
inspect submitted comments should be made in advance by calling
Mr. Joseph Clark at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT: Nicholai C.
Diamond, Tariff Classification and Marking Branch, at (202) 325-
0292.
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI (Customs Modernization), of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (“Title VI”), became effective. Title VI
amended many sections of the Tariff Act of 1930, as amended, and
related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These con-
cepts are premised on the idea that in order to maximize voluntary
compliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the public and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. § 1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and to provide any other information neces-
sary to enable CBP to properly assess duties, collect accurate statis-
tics, and determine whether any other applicable legal requirement is
met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
§1625(c)(1)), as amended by section 623 of Title VI, this notice advises
interested parties that CBP is proposing to modify one ruling letter
pertaining to the tariff classification of filler paper, composition note-
books, spiral notebooks, and wireless notebooks, as well as the eligi-
bility of filler paper for preferential treatment under NAFTA. Al-
though in this notice, CBP is specifically referring to New York Ruling
Letter (“NY”) N057699, dated May 15, 2009 (Attachment A), this
notice covers any rulings on this merchandise which may exist, but
have not been specifically identified. CBP has undertaken reasonable
efforts to search existing databases for rulings in addition to the five
identified. No further rulings have been found. Any party who has
received an interpretive ruling or decision (i.e., a ruling letter, inter-
63
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
nal advice memorandum or decision, or protest review decision) on
the merchandise subject to this notice should advise CBP during the
notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19 U.S.C.
§1625(c)(2)), as amended by section 623 of Title VI, CBP is proposing
to revoke any treatment previously accorded by CBP to substantially
identical transactions. Any person involved in substantially identical
transactions should advise CBP during this notice period. An import-
er’s failure to advise CBP of substantially identical transactions or of
a specific ruling not identified in this notice may raise issues of
reasonable care on the part of the importer or its agents for impor-
tations of merchandise subsequent to the effective date of the final
decision on this notice.
In NY N057699, CBP classified filler paper under heading 4802,
HTSUSA, specifically under subheading 4802.57.1000, HTSUSA,
which provides for “Writing and cover paper,” and determined that
the filler paper was not eligible for preferential tariff treatment under
NAFTA. In that ruling, CBP also classified composition notebooks,
spiral notebooks, and wireless notebooks under heading 4820, spe-
cifically under subheading 4820.10.2020, HTSUSA, which provides
for “Memorandum pads, letter pads and similar articles.” It is now
CBP’s position that the filler paper at issue in NY N057699 is prop-
erly classified, by operation of GRI 1, under heading 4811, HTSUSA,
specifically under subheading 4811.90.9080, HTSUS, which provides
for ““Paper, paperboard, cellulose wadding and webs of cellulose fi-
bers, coated, impregnated, covered, surface-colored, surface-
decorated or printed, in rolls or rectangular (including square) sheets,
of any size, other than goods of the kind described in heading 4803,
4809 or 4810: Other paper, paperboard, cellulose wadding and webs of
cellulose fibers: Other: Other.” As such, the filler paper is NAFTA-
originating under General Note 12, HTSUSA, and is eligible for
preferential tariff treatment. By operation of GRIs 1 and 6, the sub-
ject composition notebooks are properly classified under subheading
4820.10.2030, HTSUSA, which provides for “Sewn composition books
with dimension of 152.4–381 mm (6″ -15″) inclusive (smaller side) x
222.5–381 mm (8.75” - 15”), inclusive (large side),” and the subject
spiral notebooks and wireless notebooks are classified under sub-
heading 4820.10.2040, HTSUSA, which provides for “Other note
books with dimension of 152.4–381 mm (6″ -15″) inclusive (smaller
side) x 222.5- 381 mm (8.75″ -15″), inclusive (large side).”
Pursuant to 19 U.S.C. §1625(c)(1), CBP is proposing to modify NY
N057699 and revoke any other ruling not specifically identified to
reflect the tariff classification and NAFTA eligibility determination of
64
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
the subject merchandise according to the analysis contained in the
proposed Headquarters Ruling Letter (“HQ”) H072375, set forth as
Attachment B to this notice. Additionally, pursuant to 19 U.S.C.
§1625(c)(2), CBP is proposing to revoke any treatment previously
accorded by CBP to substantially identical transactions.
Before taking this action, consideration will be given to any written
comments timely received.
Dated: July 9, 2015
I
EVA K. O’ROURKE
for
MYLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachments
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT A]
N057699
May 15, 2009
CLA-2–48:OT:RR:NC:2:234
CATEGORY: Classification
TARIFF NO.: 4802.57.1000; 4820.10.2020
M
R.DAVID MURPHY
GRUNFELD,DESIDERIO,LEBOWITZ,SILVERMAN &KLESTADT, LLP
399 P
ARK AVENUE,25TH FLOOR
NEW YORK, NY 10022–4877
RE: The tariff classification and status under the North American Free
Trade Agreement (NAFTA), of filler paper, composition notebooks, spi-
ral notebooks and wireless notebooks from Mexico; Article 509
D
EAR MR.MURPHY:
In your letter dated April 13, 2009 and supplemented May 6, 2009, on
behalf of your client, Staples, The Office Superstore, LLC (“Staples”), you
requested a ruling on the status of filler paper, composition notebooks, spiral
notebooks and wireless notebooks from Mexico under the NAFTA.
You state in your original request that all of the items will be formed from
jumbo paper rolls sourced in Taiwan and substantially transformed in Mexico
into separate and distinct articles of commerce. You state in your supplemen-
tal letter dated May 6, 2009, the items being imported into Mexico would be
paper in rolls, weighing 40 g/m
2
or more but not more than 150 g/m
2
. The
paper would be in rolls that measure 100 - 102 cm in width. The paper is
uncoated, designated as writing paper in the industry, and doesn’t contain
fibers obtained by a mechanical or chemi-mechanical process. It is white in
color, contains less than 3% ash, has a brightness of 60% or more, and is
bleached uniformly throughout the mass. The paper is not embossed, perfo-
rated, creped or crinkled at the time of importation into Mexico.
At the time of importation into Mexico, the paper would be classified in
subheading 4802.55.1000, Harmonized Tariff Schedule of the United States.
You state in your letter dated April 13, 2009, that once in Mexico the rolls will
be transformed into filler paper, composition notebooks, spiral notebooks or
wireless notebooks. The process for all the transformations begins with un-
winding the rolls and processing the paper through a lining machine. The
purpose of the lining machine is to print lines and margin rulings on the
paper in a continuous manner. The lined paper is then jogged and cut into
large sheets. The large sheets are cut and trimmed to the appropriate size of
the item being formed.
The filler paper is cut to notebook size (20.3 cm x 26.7 cm and 21.6 cm x 27.9
cm), counted and sorted into the specified number of sheets for each package,
and three hole punched. The finished sheets are matched with a cover sheet,
shrink wrapped and placed in cartons and shipped to your client in the
United States for retail sale.
The composition notebooks are cut from large sheets into medium sheets
measuring 39 cm x 50 cm and counted and sorted into the specified number
of sheets for each notebook. The lined and cut sheets are matched with the
appropriate printed cover sheets. Two cover designs are printed on one cover
sheet. One is on the top and the other is on the bottom. The covers and sheets
of paper are sewn together to create the spine binding which is then folded
66
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
over. Spine tape is applied to cover the binding. The composition books are cut
and trimmed to their final size of 19 cm x 24 cm and placed in cartons and
shipped to your client in the United States for retail sale.
The spiral notebooks are further processed by being simultaneously perfo-
rated as it is going through the lining machine. The paper is then jogged and
cut into large sheets. The large sheets of lined, perforated paper are cut to the
appropriate notebook size 20.3 cm x 26.7 cm, 21.6 cm x 27.9 cm or 22.9 cm x
27.9 cm, counted and sorted into the specified number of sheets for each
notebook and are three hole punched. The lined sheets are matched with the
printed covers and fly sheets (if applicable) and are bound with wire. Some of
the notebooks may be matched with slip-sheets and shrink wrapped. All the
finished notebooks are placed in cartons and shipped to your client in the
United States for retail sale.
The wireless notebooks like the spiral notebooks are simultaneously per-
forated as they go through the lining machine. The lined paper is then jogged
and cut into large sheets. The large sheets are then cut to medium sheets 21.6
cm x 84 cm and counted and sorted into the specified number of sheets for the
notebook. The lined sheets are then matched with printed covers and glued
together. A spine tape is applied to cover the binding. The assembled note-
books are then cut to a final size of 21.6 cm x 27.9 cm or 22.9 cm x 27.9 cm and
three hole punched. The finished product is placed in cartons and shipped to
your clients in the United States.
The applicable tariff provision for the filler paper will be 4802.57.1000,
Harmonized Tariff Schedule of the United States (HTSUS), which provides
for Uncoated paper and paperboard, of a kind used for writing, printing or
other graphic purposes...other than paper of heading 4801 or 4803;
hand-made paper and paperboard: Other paper and paperboard not contain-
ing fibers obtained by a mechanical or chemi- mechanical process...ofsuch
fibers: Other, weighing 40 g/m
2
or more but not more than 150 g/m
2
: Writing
and cover paper. The general rate of duty will be Free.
The applicable tariff provision for the composition notebooks, spiral note-
books and the wireless notebooks will be 4820.10.2020, HTSUS, which pro-
vides for Registers account books, notebooks...ofpaper and paperboard:
Registers, account books, notebooks...andsimilar articles: Diaries, note-
books and address books, bound memorandum pads, letter pads and similar
articles: Memorandum pads, letter pads and similar articles. The general
rate of duty will be Free.
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/.
General Note 12(b), HTSUS, sets forth the criteria for determining
whether a good is originating under the NAFTA. General Note 12(b), HTSUS,
(19 U.S.C. § 1202) states, in pertinent part, that
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative
limitations set forth in the tariff schedule as “goods originating in the
territory of a NAFTA party” only if—
(i) they are goods wholly obtained or produced entirely in the
territory of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico
and/or the United States so that—
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes
a change in tariff classification described in subdivisions (r), (s) and
(t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of
subdivisions (r), (s) and (t) where no change in tariff classification is
required, and the goods satisfy all other requirements of this note; or
(iii) they are goods produced entirely in the territory of Canada,
Mexico and/or the United States exclusively from originating
materials; or
(iv) they are produced entirely in the territory of Canada, Mexico
and/or the United States but one or more of the nonoriginating
materials falling under provisions for “parts” and used in the
production of such goods does not undergo a change in tariff
classification because—
(A) the goods were imported into the territory of Canada, Mexico
and/or the United States in unassembled or disassembled form but
were classified as assembled goods pursuant to general rule of
interpretation 2(a), or
(B) the tariff headings for such goods provide for and specifically
describe both the goods themselves and their parts and is not further
divided into subheadings, or the subheadings for such goods provide
for and specifically describe both the goods themselves and their
parts,
provided that such goods do not fall under chapters 61 through 63,
inclusive, of the tariff schedule, and provided further that the
regional value content of such goods, determined in accordance with
subdivision (c) of this note, is not less than 60 percent where the
transaction value method is used, or is not less than 50 percent
where the net cost method is used, and such goods satisfy all other
applicable provisions of this note.
Based on the facts provided, the notebooks described above qualify for
NAFTA preferential treatment, because they will meet the requirements of
HTSUS General Note 12(b) (ii) (A). The goods will therefore be entitled to a
Free rate of duty under the NAFTA upon compliance with all applicable laws,
regulations, and agreements.
This ruling letter has not addressed the Regional Value Content (RVC) of
the subject goods. If you desire a ruling regarding the RVC of your goods and
their eligibility for NAFTA preferential treatment, provide the information
noted in Section 181.93(b) of the Customs Regulations (19 CFR 181.93(b)), to
U.S. Customs and Border Protection, Regulations & Rulings, 799 9th Street
N.W. - 7th floor, Washington, DC 20229–1177, along with a copy of this letter.
The filler paper does not qualify for preferential treatment under the
NAFTA because none of the above requirements are met.
This ruling is being issued under the provisions of Part 181 of the Customs
Regulations (19 C.F.R. 181).
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 Patricia A. Wilson at (646) 733–3037.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Should you wish to request an administrative review of this ruling, submit
a copy of this ruling and all relevant facts and arguments within 30 days of
the date of this letter, to the Director, Commercial Rulings Division, Head-
quarters, U.S. Customs and Border Protection, Regulations & Rulings, 799
9th Street N.W. - 7th floor, Washington, DC 20229–1177.
Sincerely,
R
OBERT B. SWIERUPSKI,
Director
National Commodity Specialist Division
69
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT B]
HQ H072375
CLA–2 OT:RR:CTF:TCM H072375 NCD
CATEGORY: Classification
TARIFF NO.: 4811.90.9080; 4820.10.2030;
4820.10.2040
D
AVID M. MURPHY
GRUNFELD,DESIDERIO,LEBOWITZ,SILVERMAN &KLESTADT LLP
339 P
ARK AVENUE,25TH FLOOR
NEW YORK, NY 10022–4877
RE: Modification of New York Ruling Letter N057699, dated May 15, 2009;
classification of filler paper, composition notebooks, spiral notebooks,
and wireless notebooks; eligibility of filler paper for preferential treat-
ment under NAFTA
D
EAR MR.MURPHY:
This is in response to your June 18, 2009 letter, on behalf of Staples, Inc.,
requesting reconsideration of New York Ruling Letters (“NY”) N057699,
dated May 15, 2009, and NY N063779, dated June 10, 2009. In NY N057699,
U.S. Customs and Border Protection (CBP) classified filler paper, composition
notebooks, spiral notebooks, and wireless notebooks under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), and determined
whether this merchandise is eligible for preferential tariff treatment under
the North American Free Trade Agreement (NAFTA). NY N063779 involved
determination of the subject products’ countries of origin for marking pur-
poses pursuant to NAFTA. We have found NY N057699 to be in error with
regard to the classification of all the subject merchandise and to the eligibility
of the subject filler paper for NAFTA treatment, and, for the reasons set forth
below, are modifying that ruling.
FACTS:
In NY N057699, CBP responded to your April 13, 2009 request for a ruling
on “the status of filler paper, composition notebooks, spiral notebooks, and
wireless notebooks from Mexico under NAFTA.” CBP stated in that ruling
letter as follows:
You state in your original request that all of the items will be formed from
jumbo paper rolls sourced in Taiwan and substantially transformed in
Mexico into separate and distinct articles of commerce. You state in your
supplemental letter dated May 6, 2009, the items being imported into
Mexico would be paper in rolls, weighing 40 g/m2 or more but not more
than 150 g/m2. The paper would be in rolls that measure 100 - 102 cm in
width. The paper is uncoated, designated as writing paper in the industry,
and doesn’t contain fibers obtained by a mechanical or chemi-mechanical
process. It is white in color, contains less than 3% ash, has a brightness of
60% or more, and is bleached uniformly throughout the mass. The paper
is not embossed, perforated, creped or crinkled at the time of importation
into Mexico.
At the time of importation into Mexico, the paper would be classified in
subheading 4802.55.1000, Harmonized Tariff Schedule of the United
States. You state in your letter dated April 13, 2009, that once in Mexico
70
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
the rolls will be transformed into filler paper, composition notebooks,
spiral notebooks or wireless notebooks. The process for all the transfor-
mations begins with unwinding the rolls and processing the paper
through a lining machine. The purpose of the lining machine is to print
lines and margin rulings on the paper in a continuous manner. The lined
paper is then jogged and cut into large sheets. The large sheets are cut
and trimmed to the appropriate size of the item being formed.
The filler paper is cut to notebook size (20.3 cm x 26.7 cm and 21.6 cm x
27.9 cm), counted and sorted into the specified number of sheets for each
package, and three hole punched. The finished sheets are matched with a
cover sheet, shrink wrapped and placed in cartons and shipped to your
client in the United States for retail sale.
The composition notebooks are cut from large sheets into medium sheets
measuring 39 cm x 50 cm and counted and sorted into the specified
number of sheets for each notebook. The lined and cut sheets are matched
with the appropriate printed cover sheets. Two cover designs are printed
on one cover sheet. One is on the top and the other is on the bottom. The
covers and sheets of paper are sewn together to create the spine binding
which is then folded over. Spine tape is applied to cover the binding. The
composition books are cut and trimmed to their final size of 19 cm x 24 cm
and placed in cartons and shipped to your client in the United States for
retail sale.
The spiral notebooks are further processed by being simultaneously per-
forated as it is going through the lining machine. The paper is then jogged
and cut into large sheets. The large sheets of lined, perforated paper are
cut to the appropriate notebook size 20.3 cm x 26.7 cm, 21.6 cm x 27.9 cm
or 22.9 cm x 27.9 cm, counted and sorted into the specified number of
sheets for each notebook and are three hole punched. The lined sheets are
matched with the printed covers and fly sheets (if applicable) and are
bound with wire. Some of the notebooks may be matched with slip-sheets
and shrink wrapped. All the finished notebooks are placed in cartons and
shipped to your client in the United States for retail sale.
The wireless notebooks like the spiral notebooks are simultaneously per-
forated as they go through the lining machine. The lined paper is then
jogged and cut into large sheets. The large sheets are then cut to medium
sheets 21.6 cm x 84 cm and counted and sorted into the specified number
of sheets for the notebook. The lined sheets are then matched with
printed covers and glued together. A spine tape is applied to cover the
binding. The assembled notebooks are then cut to a final size of 21.6 cm
x 27.9 cm or 22.9 cm x 27.9 cm and three hole punched. The finished
product is placed in cartons and shipped to your clients in the United
States.
Based on these descriptions, in NY N057699 CBP classified the filler paper
in subheading 4802.57.1000, HTSUSA, as “Writing and cover paper,” and
classified the three notebooks under subheading 4820.10.2020, HTSUSA, as
“Memorandum pads, letter pads and similar articles.” CBP further deter-
mined that the notebooks were eligible for preferential tariff treatment under
NAFTA because they met the required tariff shift from heading 4802 to
heading 4820 of General Note 12(t). However, CBP determined that the filler
paper did not similarly meet the required tariff shift or satisfy any other
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
General Note 12 provisions, and therefore did not qualify for preferential
tariff treatment under NAFTA. In NY N063779, CBP ruled that each of the
four subject products qualifies as “a good of a NAFTA country” for marking
purposes.
In your June 18, 2009 letter, you assert that the filler paper was improperly
classified in heading 4802, HTSUSA, and that it is properly classified in
heading 4811, specifically in subheading 4811.90.90 as “[o]ther paper, paper-
board, cellulose wadding and webs of cellulose fibers.” You further assert that
CBP’s erroneous classification of the filler paper resulted in the improper
denial of eligibility for preferential tariff treatment of the filler paper under
NAFTA. You also contend that the three notebooks were improperly classified
in subheading 4820.10.2020, and that their proper classification is subhead-
ing 4820.10.2050, HTSUSA. You do not contest CBP’s determinations that
the notebooks are eligible for preferential tariff treatment under NAFTA and
that each of the four subject products is “a good of a NAFTA country” for
marking purposes, although you request revocation of NY N063779 in which
the latter determination was made.
ISSUE:
I. Whether the filler paper is properly classified in subheading
4802.57.1000, HTSUSA, as writing paper, or in subheading 4811.90.9080,
HTSUSA, as other paper, and whether the notebooks are properly clas-
sified in subheading 4820.10.2020, HTSUSA, as memorandum pads, let-
ter pads, or similar articles, in subheading 4820.10.2030, HTSUSA, as
sewn composition books with dimensions of 152.4 -381 mm x 222.5–381,
in subheading 4820.10.2040, HTSUSA, as other notebooks with dimen-
sions of 152.4–381 mm x 222.5–381, or in subheading 4820.10.2060,
HTSUSA, as other notebooks.
1
II. Whether the filler paper is eligible for preferential tariff treatment under
NAFTA.
LAW AND ANALYSIS:
To determine whether the filler paper is eligible for preferential tariff
treatment under NAFTA, we must first ascertain the proper classifications of
the filler paper at the time of its entry into Mexico and at the time of its
subsequent entry into the U.S. Accordingly, we initially address classification
of the filler paper and notebooks under the HTSUSA.
I. Classification
Merchandise imported into the United States is classified under the HT-
SUSA. Tariff classification is governed by the principles set forth in the
1
We note that subheading 4811.90.9050 no longer exists, and that subheading 4811.90.9080
has covered goods formerly classifiable in subheading 4811.90.9050 since the latter’s elimi-
nation from the HTSUSA in 2011. We therefore consider whether the filler paper is
classifiable in subheading 4811.90.9080. Similarly, subheading 4820.10.2050 was replaced
by subheading 4820.10.2060 in 2010, and we therefore consider whether the notebooks are
classifiable in the latter provision. Also, as discussed more fully below, the other two
subheadings under consideration for classification of the notebooks, subheadings
4820.10.2030 and 4820.10.2040, were added to the HTSUSA in 2010 after you requested
this reconsideration.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
General Rules of Interpretation (GRIs) and, in the absence of special lan-
guage or context which requires otherwise, by the Additional U.S. Rules of
Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are
part of the HTSUSA and are to be considered statutory provisions of law for
all purposes.
GRI 1 requires that classification be determined first according to the
terms of the headings of the tariff schedule and any relative section or
chapter notes. In the event that the goods cannot be classified solely on the
basis of GRI 1, and if the heading and legal notes do not otherwise require,
the remaining GRIs 2 through 6 may then be applied in order. GRI 6 requires
that the classification of goods in the subheadings of headings shall be
determined according to the terms of those subheadings, any related sub-
heading notes and, mutatis mutandis, to GRIs 1 through 5.
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System
at the international level. While neither legally binding nor dispositive, the
ENs provide a commentary on the scope of each heading of the HTSUSA and
are generally indicative of the proper interpretation of the headings. It is
CBP’s practice to consult, whenever possible, the terms of the ENs when
interpreting the HTSUSA. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August
23, 1989).
The 2015 HTSUSA provisions under consideration are as follows:
4802 Uncoated paper and paperboard, of a kind used for writing, print-
ing or other graphic purposes, and non perforated punch-cards
and punch tape paper, in rolls or rectangular (including square)
sheets, of any size, other than paper of heading 4801 or 4803;
hand-made paper and paperboard:
Other paper and paperboard, not containing fibers obtained
by a mechanical or chemi-mechanical process or of which
not more than 10 percent by weight of the total fiber con-
tent consists of such fibers:
4802.57 Other, weighing 40 g/m2 or more but not more than
150 g/m2:
4802.57.1000 Writing and cover paper
4811 Paper, paperboard, cellulose wadding and webs of cellulose fibers,
coated, impregnated, covered, surface-colored, surface-decorated
or printed, in rolls or rectangular (including square) sheets, of any
size, other than goods of the kind described in heading 4803,
4809, or 4810:
4811.90 Other paper, paperboard, cellulose wadding and webs of cel-
lulose fibers:
4811.90.90 Other:
4811.90.9080 Other
4820 Registers, account books, notebooks, order books, receipt books,
letter pads, memorandum pads, diaries and similar articles, exer-
cise books, blotting pads, binders (looseleaf or other), folders, file
covers, manifold business forms, interleaved carbon sets and other
articles of stationery, of paper or paperboard; albums for samples
or for collections and book covers (including cover boards and
book jackets) of paper or paperboard:
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
4820.10 Registers, account books, notebooks, order books, receipt
books, letter pads, memorandum pads, diaries and similar
articles:
4820.10.20 Diaries, notebooks and address books, bound; memo-
randum pads, letter pads, letter pads and similar ar-
ticles:
4820.10.2020 Memorandum pads, letter pads and similar ar-
ticles
4820.10.2030 Sewn composition books with dimensions of
152.4- 381 mm (6″ -15″), inclusive (small side)
X 222.5–381 mm (8.75″ -15″), inclusive (large
side)
4820.10.2040 Other note books with dimensions of 152.4–381
mm (6″ -15″), inclusive (small side) X 222.5–381
mm (8.75″ -15″), inclusive (large side)
4820.10.2060 Other
As a preliminary matter, we agree with CBP’s determination in NY
N057699 that the subject products are classifiable in subheading
4802.55.1000, HTSUSA, at the time of their entry into Mexico. Subheading
4802.55.1000, HTSUSA, provides for “[u]ncoated paper and paperboard, of a
kind used for writing...in rolls or rectangular (including square) sheets, of any
size, other than paper of heading 4801 or 4803; hand-made paper and paper-
board: Weighing 40 g/m2 or more but not more than 150 g/m2, in rolls: Other
paper and paperboard, not containing fibers obtained by a mechanical or
chemi-mechanical process or of which not more than 10 percent by weight of
the total fiber content consists of such fibers: Of a width exceeding 15 cm:
Writing and cover paper.” Note 3 to Chapter 48 of the HTSUS states as
follows:
Subject to the provisions of note 7, headings 4801 to 4805 include paper
and paperboard which have been subjected to calendering, super-
calendering, glazing or similar finishing, false water-marking or surface
sizing, and also paper, paperboard, cellulose wadding and webs of cellu-
lose fibers, colored or marbled throughout the mass by any method.
Except where heading 4803 otherwise requires, these headings do not
apply to paper, paperboard, cellulose wadding or webs of cellulose fibers
which have been otherwise processed.
Additionally, Note 5 to Chapter 48 of the HTSUSA states as follows:
For the purposes of heading 4802, the expressions “paper and paper-
board, of a kind used for writing, printing or other graphic purposes” and
“nonperforated punch-cards and punch tape paper” mean paper and pa-
perboard made mainly from bleached pulp or from pulp obtained by a
mechanical or chemi-mechanical process and satisfying any of the follow-
ing criteria:
For paper or paperboard weighing not more than 150 g/m2:
...
(c) Containing more than 3 percent ash and having a brightness of 60
percent or more...
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
According to your submissions, all of the instant products remain incorpo-
rated in jumbo paper rolls at the time of their entry into Mexico. The jumbo
rolls are uncoated, designated as writing paper, and contain no fibers ob-
tained by a mechanical or chemi-mechanical process. They weigh between 40
g/m2 and 150 g/m2 and measure between 100 and 102 cm in width. In
accordance with Note 5(c) to Chapter 48, they are white in color, contain less
than 3 percent ash, and have a brightness of 60 percent or more. Thus, at the
time of their arrival in Mexico, they are not excluded from heading 4802 by
operation of Note 3 to Chapter 48. Accordingly, they are, at that time, clas-
sifiable under subheading 4802.55.1000.
While in Mexico, the paper rolls have been imprinted with lines and
margin rulings and cut to size. In addition, the filler paper has been three-
hole punched, the paper comprising the composition notebooks has been sewn
and bound with spine tape, the paper comprising the spiral notebooks has
been perforated, three-hole punched and bound with wire, and the paper
comprising the wireless notebooks has been perforated, three-hole punched,
and bound with glue. None of this additional processing is described by either
heading 4802 or Note 3 to Chapter 48, the latter of which explicitly excludes
from headings 4801 through 4805 products that have undergone processes
beyond those enumerated in the note. Accordingly, all of the products are
effectively excluded from heading 4802 and must be classified elsewhere.
While this determination is not in dispute with regard to the three notebooks,
which CBP classified under heading 4820 in NY N057699, it renders the
classification of the filler paper under subheading 4802.57.10, HTSUSA, in
that case incorrect.
As stated above, you assert in your June 18, 2009 letter that the filler paper
is instead properly classified in heading 4811. This heading covers, among
other things, paper in rectangular sheets. The General EN to Chapter 48
provides, in pertinent part, as follows:
This Chapter covers:
(I) Paper... of all kinds, in rolls or sheets:
...
(B) Headings 48.06 to 48.11 relate to...paper, paperboard or cellulose
wadding and webs of cellulose fibres which have been subjected
to various treatments, such as coating, design printing, ruling,
impregnating, corrugation, creping, embossing, and perforation.
(Emphasis added). Additionally, EN 48.11 provides that “[p]aper and paper-
board are classified in this heading only if they are in strips or rolls or in
rectangular (including square sheets, of any size.” Consistent with these
ENs, CBP has repeatedly classified rectangular filler paper that has been
ruled, perforated, or three-hole punched in heading 4811, specifically in
subheading 4811.90.90. See NY N248171, dated November 27, 2013; NY
N233367, dated October 17, 2012; NY N113475, dated July 30, 2010; NY
N021510, dated February 6, 2008; NY N021508, dated February 6, 2008; NY
L82778, dated March 15, 2005; and NY J81599, dated March 10, 2003. As in
these previous rulings, the instant filler paper is in rectangular form, mea-
suring either 20.3 centimeters by 26.7 centimeters or 21.6 centimeters by
27.9 centimeters, and has been imprinted with lines and margin rulings and
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
three-hole punched. Accordingly, we agree with your assertion that it is
properly classified in subheading 4811.90.9080, HTSUSA.
You also assert in your letter that, within subheading 4820.10.20, the
subject composition notebooks, spiral notebooks, and wireless notebooks
qualify as “Diaries, notebooks and address books, bound; memorandum pads,
letter pads and similar articles: Other,” which, as of 2010, is described by
subheading 4820.10.2060. As support for your contention, you cite several
rulings in which CBP classified notepads and notebooks in subheading
4820.10.2050, the predecessor to subheading 4820.10.2060. See Headquar-
ters Ruling Letter (HQ) 965595, dated August 5, 2002; NY N004628, dated
January 18, 2007; NY M87370, dated November 14, 2006; and NY M83981,
dated June 16, 2006. However, in 2010, following the filing of your letter,
subheading 4820.10.20 was revised at the 10-digit level, resulting in the
additions of subheading 4820.10.2030, which covers “Sewn composition books
with dimensions of 152.4–381 mm (6” - 15”), inclusive (small side) X
222.5–381 mm (8.75” -15”), inclusive (large side),” and subheading
4820.10.2040, which covers “Other note books with dimensions of 152.4–381
mm (6” - 15”), inclusive (small side) X 222.5–381 mm (8.75” -15”), inclusive
(large side).” In the wake of these revisions, CBP has consistently classified
sewn composition journals in subheading 4820.10.2030 while classifying spi-
ral and other non-sewn notebooks in subheading 4820.10.2040. See NY
N255460, dated August 19, 2014; NY N254683, dated July 11, 2014; NY
N252384, dated May 5, 2014; NY N246920, dated November 1, 2013; and NY
N140787, dated February 2, 2011.
Consequently, while we agree that the notebooks qualified as “Diaries,
notebooks and address books, bound; memorandum pads, letter pads and
similar articles: Other” at the time your letter was filed, they are now
described instead by the terms of subheadings 4820.10.2030 and
4820.10.2040. Specifically, the composition notebooks are properly classified
in subheading 4820.10.2030, as they are sewn and boast dimensions of 240
millimeters by 190 millimeters. The spiral notebooks and wireless notebooks
are properly classified in subheading 4820.10.2040 because they are not sewn
and, similar to the composition notebooks, are of dimensions falling within
the measurement ranges described by the subheading.
II. NAFTA Eligibility
General Note 12, HTSUSA, incorporates Article 401 of the NAFTA into the
HTSUSA. GN 12(a)(ii), HTSUSA, provides, in pertinent part, that:
Goods that originate in the territory of a NAFTA party under the terms of
subdivision (b) of this note and that qualify to be marked as goods of
Mexico under the terms of the marking rules set forth in regulations
issued by the Secretary of the Treasury (without regard to whether the
goods are marked), and goods enumerated in subdivision (u) of this note,
when such goods are imported into the customs territory of the United
States and are entered under a subheading for which a rate of duty
appears in the “Special” subcolumn followed by the symbol “MX” in
parentheses, are eligible for such duty rate, in accordance with section
201 of the North American Free Trade Agreement Implementation Act.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Accordingly, the subject goods will be eligible for the “Special” “MX” rate of
duty provided that: (A) They qualify as NAFTA-originating under General
Note 12(b), HTSUSA; and (B) they qualify for marking as goods of Mexico
under the NAFTA Marking Rules set forth in Part 102 of the Code of Federal
Regulations (19 C.F.R. § 102).
A. NAFTA-Originating under General Note 12(b)
GN 12(b), HTSUSA, provides, in pertinent part, as follows:
For the purposes of this note, goods imported into the Customs territory
of the United States are eligible for the tariff treatment and quantitative
limitations set forth in the tariff schedule as “goods originating in the
territory of a NAFTA party” only if—
(i) they are goods wholly obtained or produced entirely in the territory
of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico
and/or the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods under-
goes a change in tariff classification described in subdivisions (r), (s)
and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivi-
sions (r), (s) and (t) where no change in tariff classification is re-
quired, and the goods satisfy all other requirements of this note; or
(iii) they are goods produced entirely in the territory of Canada, Mexico
and/or the United States exclusively from originating materials.
Because the jumbo paper rolls from which the subject products were cut
were produced in Taiwan, they cannot be considered “goods wholly obtained
or produced entirely in the territory of Canada, Mexico and/or the United
States,” and consequently do not satisfy the requirements of General Note
12(b)(i). Therefore, we must determine whether the non-originating materi-
als undergo an enumerated tariff shift or otherwise satisfy one of the defini-
tions of “goods originating in the territory of a NAFTA party” provided by GN
12(b)(ii). GN 12(t) lists the following applicable changes in relation to heading
4811:
Chapter 48
3A. (A) A change to paper or paperboard in strips or rolls of
a width not exceeding 15 cm of heading 4811 from
strips or rolls of a width exceeding 15 cm of heading
4811, floor coverings on a base of paper or paper-
board of heading 4811 or any other heading, except
from headings 4817 through 4823;
(B) A change to paper or paperboard in rectangular (in-
cluding square) sheets with the larger dimension not
exceeding 36 cm or the other dimension not exceed-
ing 15 cm in the unfolded state of heading 4811 fro-
m...any other heading, except headings 4817 through
4832.
...
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
6. A change to headings 4817 through 4822 from any heading outside
that group, except from heading 4823.
As discussed above, the subject filler paper enters Mexico as a product of
heading 4802, but leaves the country and subsequently enters the U.S. as a
product of heading 4811. Accordingly, we agree with your assertion that the
filler paper is covered by GN 12(b)(ii)(A), insofar as it undergoes a change in
tariff classification enumerated in GN 12(t) while in the territory of Mexico.
We also note that CBP correctly determined the subject notebooks to be
within the scope of GN 12(b)(ii)(A) because they underwent a change from
heading 4802 to goods of heading 4820 while in Mexico, although this deter-
mination is not under dispute.
B. Country of Origin Marking as Goods of Mexico
GN 12(a)(ii) also requires, as a condition for preferential tariff treatment,
that the subject NAFTA-originating merchandise qualify for marking as
goods of Mexico under the NAFTA Marking Rules. Marking of imports is
governed by section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
§1304), which mandates 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 manner as to indicate to the ultimate pur-
chaser the English name of the country of origin of the article.
Part 134, CBP Regulations (19 C.F.R. Part 134) implements the require-
ments of and exceptions to 19 U.S.C. §1304. 19 C.F.R. §134.1(b) defines
“country of origin” as:
The country of manufacture, production, or growth of any article of for-
eign 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 this part;
however, for a good of a NAFTA country, the NAFTA Marking Rules will
determine the country of origin.
Section 134.1(j) 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) 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, which are explicated in 19
C.F.R. Part 102. Section 102.11 sets forth the required hierarchy for deter-
mining country of origin for marking purposes:
The following rules shall apply for purposes of determining the country of
origin of imported goods other than textile and apparel products covered
by § 102.21.
(a) The country of origin of a good is the country in which:
(1) The good is wholly obtained or produced;
(2) The good is produced exclusively from domestic materials; or
(3) Each foreign material incorporated in that good undergoes an appli-
cable change in tariff classification set out in § 102.20 and satisfies any
other applicable requirements of that section, and all other applicable
requirements of these rules are satisfied.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
As discussed above, the subject goods are neither wholly obtained or pro-
duced in Mexico nor produced solely from materials originating from Mexico.
Consequently, to qualify for marking as goods of Mexico, they must undergo
changes in classification enumerated in 19 C.F.R. §102.20. Similar to GN
12(t), 19 C.F.R. §102.20(j) describes shifts to heading 4811 from all headings
other than headings 4817 to 4823 and shifts to heading 4820 from any other
heading.
2
As previously established, all of the subject goods undergo such
shifts while in Mexico, insofar as the filler paper shifts from heading 4802 to
heading 4811 and the notebooks shift from heading 4802 to heading 4820.
Therefore, Mexico is the country of origin for all of the subject goods and the
goods must be marked accordingly.
In your June 18, 2009 letter requesting revocation of NY N063779, you
correctly assert that the filler paper is a “product of Mexico” pursuant to 19
C.F.R. §102. Yet, this assertion is completely consistent with CBP’s conclusion
in NY N063779 that “the imported lined paper notebooks and filler paper are
goods of Mexico for marking purposes.” Therefore, we affirm NY N063779.
HOLDING:
By application of GRI 1, the subject filler paper is classified under heading
4811, HTSUSA, specifically under subheading 4811.90.9080, HTSUSA,
which provides for “Paper, paperboard, cellulose wadding and webs of cellu-
lose fibers, coated, impregnated, covered, surface-colored, surface-decorated
or printed, in rolls or rectangular (including square) sheets, of any size, other
than goods of the kind described in heading 4803, 4809 or 4810: Other paper,
paperboard, cellulose wadding and webs of cellulose fibers: Other: Other.”
The column one, general rate of duty is free.
By application of GRIs 1 and 6, the subject composition notebooks are
classified under heading 4820, HTSUSA, specifically under subheading
4820.10.2030, HTSUSA, which provides for “Registers, account books, note-
books, order books, receipt books, letter pads, memorandum pads, diaries and
similar articles, exercise books, blotting pads, binders (looseleaf or other),
folders, file covers, manifold business forms, interleaved carbon set: Regis-
ters, account books, notebooks, order books, receipt books, letter pads, memo-
randum pads, diaries and similar articles: Diaries, notebooks and address
books, bound; memorandum pads, letter pads and similar articles: Sewn
composition books with dimension of 152.4–381 mm (6″ -15″) inclusive
2
19 C.F.R. 102.20(j) provides, in relevant part, as follows:
...
A change to paper or paperboard in strips or rolls of a width not exceeding 15 cm of
heading 4811 from strips or rolls of a width exceeding 15 cm of heading 4811 or any other
heading, except from heading 4817 through 4823;
A change to paper or paperboard in rectangular (including square) sheets with the
larger dimension not exceeding 36 cm or the other dimension not exceeding 15 cm in the
unfolded state of heading 4811 from strips or rolls of a width exceeding 15 cm of heading
4811, paper or paperboard in rectangular (including square) sheets with the larger
dimension exceeding 36 cm and the other dimension exceeding 15 cm in the unfolded
state of heading 4811 or any other heading, except from heading 4817 through 4823...
...
A change to heading 4817 through 4822 from any other heading, including another
heading within that group, except for a change to heading 4818 from sanitary towels and
tampons, napkin and napkin liners for babies, and similar sanitary articles, of paper
pulp, paper, cellulose wadding, or webs of cellulose fibers, of heading 9619...
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(smaller side) x 222.5–381 mm (8.75″ -15″), inclusive (large side).” The
column one, general rate of duty is free.
By application of GRIs 1 and 6, the subject spiral notebooks and wireless
notebooks are classified under heading 4820, HTSUS, specifically under
subheading 4820.10.2040, HTSUSA, which provides for “Registers, account
books, notebooks, order books, receipt books, letter pads, memorandum pads,
diaries and similar articles, exercise books, blotting pads, binders (looseleaf
or other), folders, file covers, manifold business forms, interleaved carbon set:
Registers, account books, notebooks, order books, receipt books, letter pads,
memorandum pads, diaries and similar articles: Diaries, notebooks and ad-
dress books, bound; memorandum pads, letter pads and similar articles:
Other note books with dimension of 152.4–381 mm (6″ -15″) inclusive
(smaller side) x 222.5–381 mm (8.75″ -15″), inclusive (large side).” The
column one, general rate of duty is free.
Because they satisfy General Note 12, HTSUSA, and 19 C.F.R. Parts 134
and 102, the subject filler paper, composition notebooks, spiral notebooks,
and wireless notebooks are eligible for preferential tariff treatment under
NAFTA, and should be marked as goods of Mexico.
Duty rates are provided for convenience only and are subject to change. The
text of the most recent HTSUSA and the accompanying duty rates are
provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N057699 will be MODIFIED in accordance with
the above analysis.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
◆
GENERAL NOTICE
19 CFR PART 177
REVOCATION OF TWO RULING LETTERS, PROPOSED
MODIFICATION OF ONE RULING LETTER, AND
REVOCATION OF TREATMENT RELATING TO THE
TARIFF CLASSIFICATION OF CAT TOYS
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of revocation of two rulings and modification of one
ruling letter and revocation of treatment relating to the classification
of cat toys.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§1625 (c)), as amended by section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-
ested parties that Customs and Border Protection (“CBP”) is revoking
two rulings concerning the classification of the “Play-N-Squeak “Tail
Spin” cat toy and the “Crazy Mouse” cat toy, as well as modifying one
ruling concerning the classification of the “Cat Catch” cat toy, under
the Harmonized Tariff Schedule of the United States (“HTSUS”).
Similarly, CBP is revoking any treatment previously accorded by CBP
to substantially identical transactions. Notice of the proposed revo-
cation was published on April 22, 2015, in Volume 49, No. 16, of the
CUSTOMS BULLETIN. No comments were received in response to
this notice.
EFFECTIVE DATE: This action is effective for merchandise
entered or withdrawn from warehouse for consumption on or after
September 28, 2015.
FOR FURTHER INFORMATION CONTACT: Anthony L.
Shurn, Tariff Classification and Marking Branch (202) 325–0218.
SUPPLEMENTARY INFORMATION:
Background
On December 8, 1993, Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These con-
cepts are premised on the idea that in order to maximize voluntary
compliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. § 1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and to provide any other information neces-
sary to enable CBP to properly assess duties, collect accurate statis-
tics and determine whether any other applicable legal requirement is
met.
Pursuant to section 625(c)(1), Tariff Act of 1930, as amended by
section 623 of Title VI (Customs Modernization) of the North Ameri-
can Free Trade Agreement Implementation Act (Pub. L. 103–182, 107
Stat. 2057), a notice was published in the CUSTOMS BULLETIN,
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Volume 49, No. 16, on April 22, 2015, proposing to revoke CBP Ruling
Letters NY N056253 (April 20, 2009) and NY D83727 (November 18,
1998) and modify CBP Ruling Letter NY M87177 (October 27, 2006),
and any treatment accorded to substantially identical transactions.
No comments were received in response to this notice.
As stated in the proposed notice, this revocation and modification
will cover any rulings on this issue that may exist but have not been
specifically identified. Any party who has received an interpretive
ruling or decision (i.e., ruling letter, internal advice memorandum or
decision or protest review decision) on the merchandise subject to this
Notice should have advised CBP during this notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930, as
amended (19 U.S.C. § 1625(c)(2)), CBP is revoking any treatment
previously accorded by CBP to substantially identical transactions.
Any person involved in substantially identical transactions should
have advised CBP during this notice period. An importer’s failure to
advise CBP of substantially identical transactions or of a specific
ruling not identified in this notice, may raise issues of reasonable care
on the part of the importer or its agents for importations of merchan-
dise subsequent to the effective date of this final decision.
In NY N056253, NY D83727, and NY M87177, CBP ruled that cat
toys are to be classified under HTSUS heading 8543, which provides
for “Electrical machines and apparatus, having individual functions,
not specified or included elsewhere in this chapter; parts thereof:...”
The referenced rulings are incorrect because as machines with a
primarily mechanical function the cat toys ruled upon therein do not
meet the description of an “electrical machine” of heading 8543 and
thus more appropriately fall within the description of machines clas-
sified under heading 8479. As machines that are not otherwise clas-
sifiable anywhere else within the HTSUS and are not excluded from
either Section XVI in general or Chapter 84 specifically, the cat toys
ruled upon in NY N056253, NY D83727, and NY M87177 are properly
classifiable under HTSUS heading 8479 as machines “having indi-
vidual functions, not specified or included elsewhere in [Chapter 84];
parts thereof:...”
Pursuant to 19 U.S.C. § 1625(c)(1), CBP is revoking N056253 and
NY D83727 and any other ruling not specifically identified, as well as
modifying NY M87177 and any other appropriate ruling not identi-
fied, to reflect the proper classification of cat toys pursuant to the
analysis set forth in Proposed Headquarters Ruling Letter H259644
(Attached). Additionally, pursuant to 19 U.S.C. § 1625(c)(2), CBP is
revoking any treatment previously accorded by CBP to substantially
identical transactions.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Dated: July 1, 2015
I
EVA K. O’ROURKE
for
MYLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachment
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
HQ H259644
July 1, 2015
OT:RR:CTF:TCM H259644 ALS
CATEGORY: Classification
TARIFF NO.: 8479.89.98
M
S.MARY COMPTON
CHB MANAGER
GLOBAL TRANSPORTATION SERVICES,INC.
18209 80
TH AVE SOUTH,SUITE A,
K
ENT,WASHINGTON 98032
RE: Revocation of CBP Rulings NY N056253 and NY D83727; Modification
of CBP Ruling NY M87177; Classification of Cat Toys
D
EAR MS.COMPTON:
In a letter to U.S. Customs and Border Protection (CBP) dated March 24,
2009, your company requested a tariff classification ruling under the Har-
monized Tariff Schedule of HTSUS for the Play-N-Squeak “Tail Spin” cat toy.
In CBP Ruling NY N056253 (April 20, 2009), CBP classified the Play-N-
Squeak “Tail Spin” cat toy under the Harmonized Tariff Schedule of the
United States (HTSUS) subheading 8543.70.9650 as an electrical apparatus
with individual functions. We have reviewed NY N056253 and find the ruling
to be incorrect.
For the reasons set forth below, we hereby revoke NY N056253 as well as
another ruling with a substantially similar cat toy, CBP Ruling NY D83727
(November 16, 1998). We also hereby modify CBP Ruling NY M87177 (Octo-
ber 27, 2006). We also find both of those rulings to be incorrect with respect
to the similar cat toys classified therein.
1
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625 (c)(1)), as
amended by section 623 of Title VI (Customs Modernization) of the North
American Free Trade Agreement Implementation Act (Pub. L. 103–182, 107
Stat. 2057), ), a notice was published in the CUSTOMS BULLETIN, Volume
49, No. 16, on April 22, 2015, proposing to revoke CBP Ruling Letters NY
N056253 (April 20, 2009) and NY D83727 (November 18, 1998) and modify
CBP Ruling Letter NY M87177 (October 27, 2006), and any treatment ac-
corded to substantially identical transactions. No comments were received in
response to the notice.
FACTS:
In NY N056253, CBP described the Play-N-Squeak “Tail Spin” cat toy, in
pertinent part, as follows:
The merchandise subject to this ruling is the Play-N-Squeak “Tail Spin”
cat toy. This item is comprised of a plastic housing in the shape of a tree
stump. It measures approximately 4 ½ inches in heightx4½inches in
1
The “Crazy Mouse” cat toy was classified under the 1998 Supplement 1 edition of the
HTSUS, under which subheading 8543.89.96 read as follows: “Electrical machines and
apparatus, having individual functions, not specified or included elsewhere in this chapter;
parts thereof : Other: Other......” The “Crazy Mouse” cat toy was described in NY D83727 as
follows: ...the “Crazy Mouse” is a battery operated representation of a mouse and is
intended as a toy for use by a cat. When activated, the mouse moves back and forth in a
circular motion by means of three built-in plastic wheels on its underside.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
width. On the side of the tree stump is a small branch which contains an
“On/Off” button. There are two openings located on the side of the tree
stump. One opening contains a textile plush “mouse” which is suspended
by a small spring; the other opening contains a simulated mouse tail that
moves via a small electronic motor which is incorporated within this item.
When the toy is activated, this device emits an electronic mouse squeak,
while the artificial tail randomly emerges from the tree stump, enticing
the cat to chase the tail and play with the mouse. In addition, this item
features a sisal top for cats to scratch on. The toy operates on two “AA”
batteries and contains replaceable mouse tail material. You suggest that
the correct classification of this item is in subheading 6307.90.7500,
HTSUS, which provides for toys for pets, of textile materials. This item is
a composite good composed of textile, plastic, and electrical components.
The textile materials do not impart the essential character. The electrical
components impart the essential character. General Rule of Interpreta-
tion 3(b), HTSUS, noted.
ISSUE:
Is the mechanical function of the subject cat toy a primary function and
therefore classifiable under HTSUS chapter 84 or is it subsidiary to the
electrical function and therefore classifiable under HTSUS chapter 85?
LAW AND ANALYSIS:
Classification under the HTSUS is determined in accordance with the
General Rules of Interpretation (“GRI”) and, in the absence of special lan-
guage or context which otherwise requires, by the Additional U.S. Rules of
Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be
“determined according to the terms of the headings and any relative section
or chapter notes.” In the event that the goods cannot be classified solely on
the basis of GRI 1, and if the headings and legal notes do not otherwise
require, GRIs 2 through 6 may be applied in order. The HTSUS provisions at
issue are the following:
2
8543 Electrical machines and apparatus, having individual functions,
not specified or included elsewhere in this chapter; parts thereof:
8543.70 Other machines and apparatus:
8543.70.96 Other ................................................................................
8479 Machines and mechanical appliances having individual functions,
not specified or included elsewhere in this chapter; parts thereof:
8479.89 Other:
8479.89.98 Other ................................................................................
The Explanatory Notes (ENs) to the Harmonized Commodity Description
and Coding System represent the official interpretation of the tariff at the
international level. While neither legally binding nor dispositive, the ENs
provide a commentary on the scope of each heading of the HTSUS and are
2
Note 5 to Chapter 95 of the HTSUS specifically excludes “pet toys” from classification in
that chapter.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
generally indicative of the proper interpretation of these headings. See T.D.
89.80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The ENs to heading
84.79 state that this heading is restricted to machinery having individual
functions which:
(a) Is not excluded from this Chapter by the operation of any Section or
Chapter Note, and
(b) Is not covered more specifically by a heading in any other Chapter of
the Nomenclature, and
(c) Cannot be classified in any other particular heading of this Chapter
since:
(i) No other heading covers it by reference to its method of
functioning, description or type, and
(ii) No other heading covers it by reference to its use or to the
industry in which it is employed, or
(iii) It could fall equally well into two (or more) other such headings
(general purpose machines).
The EN for heading 8543 specifically states that “the heading also includes
electrical goods incorporating mechanical features provided that such fea-
tures are subsidiary to the electrical function of the machine or appliance.”
(Emphasis in original.)
The cat toy at issue herein and each case noted above have moving parts
that work when given power from its battery source. The mechanical function
of each cat toy is the movement of a featured part, whether it be the simu-
lated mouse tail of the “Tail Spin,” the wand with a feather at its end of the
“Cat Catch, or the replica mouse itself that comprises the “Crazy Mouse.” It
is the moving part that the cat chases. The electrical function is each case,
supplying power to the moving parts, actually supports the mechanical func-
tion of each toy, not the other way around. In fact, the articles noted in the
exceptions listed in the EN for 8543 bear no resemblance to the cat toys at
issue here. Thus, the mechanical functions in each case are not subsidiary to
the electrical functions, thereby disqualifying each cat toy from being classi-
fied under heading 8543.
As machinery that is not otherwise classifiable anywhere else within the
HTSUS and is not excluded from either Section XVI in general or Chapter 84
specifically, the Play-N-Squeak “Tail Spin” is properly classifiable under
HTSUS subheading 8479.89.98 as an apparatus “having individual func-
tions, not specified or included elsewhere in [Chapter 84]... Other: Other.”
Likewise, the “Crazy Mouse” cat toy of NY D83727 and the “Cat Catch” cat
toy of NY M87177 are also properly classifiable under HTSUS subheading
8479.89.98.
HOLDING:
The subject Play-N-Squeak “Tail Spin” cat toy is properly classified under
HTSUS subheading 8479.89.98 as machines “having individual functions,
not specified or included elsewhere in [Chapter 84];... Other: Other.” The
general column 1 rate of duty is 2.5% 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 www.usitc.gov.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
EFFECT ON OTHER RULINGS:
CBP Ruling NY N056253 (April 20, 2009) is hereby REVOKED.
CBP Ruling NY D83727 (November 16, 2008) is hereby REVOKED.
CBP Ruling NY M87177 (October 27, 2006) is hereby MODIFIED only with
respect to the tariff classification of the “Cat Catch” cat toy.
Sincerely,
I
EVA K. O’ROURKE
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
cc: Legal Department
Wal-Mart, Inc.
702 SW 8th Street
Bentonville, AR 72716–0215
Ms. Cathy Walsh
Delmar International, Inc.
1 Cross Island Plaza #115
Rosedale, NY 11422
◆
GENERAL NOTICE
19 C.F.R. PART 177
PROPOSED MODIFICATION OF SIX RULING LETTERS
AND REVOCATION OF TREATMENT RELATING TO
PREFERENTIAL TARIFF TREATMENT AND COUNTRY OF
ORIGIN MARKING UNDER THE NAFTA FOR CERTAIN
PREPARED NUTS
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of proposed modification of six ruling letters and
revocation of treatment relating to preferential tariff treatment and
country of origin marking under the North American Free Trade
Agreement (“NAFTA”) for certain prepared nuts.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§1625(c)), as amended by section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub. L. 103–182,107 Stat. 2057), this notice advises inter-
ested parties that U.S. Customs and Border Protection (“CBP”)
intends to modify six ruling letters relating to preferential tariff
treatment and country of origin marking under the NAFTA for cer-
tain prepared nuts. Similarly, CBP proposes to revoke any treatment
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
previously accorded by it to substantially identical transactions.
Comments are invited on the correctness of the intended actions.
DATES: Comments must be received on or before August 28, 2015.
ADDRESSES: Written comments are to be addressed to U.S.
Customs and Border Protection, Office of International Trade,
Regulations and Rulings, Attention: Trade and Commercial
Regulations Branch, 90 K Street, NE, 10th Floor, Washington, DC
20229. Submitted comments may be inspected at the address above
during normal business hours. Arrangements to inspect submitted
comments should be made in advance by calling Joseph Clark,
Trade and Commercial Regulations Branch, at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT: Antonio J. Rivera,
Valuation and Special Programs Branch, at (202) 325–0226.
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”) became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
informed compliance and shared responsibility. These concepts are
premised on the idea that in order to maximize voluntary compliance
with customs laws and regulations, the trade community needs to be
clearly and completely informed of its legal obligations. Accordingly,
the law imposes a greater obligation on CBP to provide the public
with improved information concerning the trade community’s respon-
sibilities and rights under the customs and related laws. In addition,
both the trade and CBP share responsibility in carrying out import
requirements. For example, under section 484 of the Tariff Act of
1930, as amended (19 U.S.C. § 1484), the importer of record is re-
sponsible for using reasonable care to enter, classify and value im-
ported merchandise, and provide any other information necessary to
enable CBP to properly assess duties, collect accurate statistics and
determine whether any other applicable legal requirement is met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §
1625(c)(1)), as amended by section 623 of Title VI, this notice advises
interested parties that CBP intends to modify six ruling letters re-
lating to preferential tariff treatment and country of origin marking
under the NAFTA for certain prepared nuts. Although in this notice
CBP is specifically referring to the modification of New York Ruling
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Letter (NY) E87234, dated October 1, 1999, (Attachment A); NY
F88926, dated January 13, 2000, (Attachment B); NY H84143, dated
August 6, 2001, (Attachment C); NY H82352, dated August 10, 2001,
(Attachment D); NY R02589, dated September 23, 2005, (Attachment
E); and, NY N228118, dated August 8, 2012, (Attachment F), this
notice covers any rulings on this merchandise which may exist but
have not been specifically identified. CBP has undertaken reasonable
efforts to search existing databases for rulings in addition to the ones
identified. No further rulings have been found. Any party who has
received an interpretive ruling or decision (i.e., ruling letter, internal
advice memorandum or decision or protest review decision) on the
merchandise subject to this notice should advise CBP during this
notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19 U.S.C.
§ 1625 (c)(2)), as amended by section 623 of Title VI, CBP intends to
revoke any treatment previously accorded by CBP to substantially
identical transactions. Any person involved with substantially iden-
tical transactions should advise CBP during this notice period. An
importer’s failure to advise CBP of substantially identical transac-
tions or of a specific ruling not identified in this notice, may raise
issues of reasonable care on the part of the importer or its agents for
importations of merchandise subsequent to the effective date of the
final decision on this notice.
In NY E87234, CBP determined, in relevant part, that various raw
nuts of unspecified origins imported into Canada, where they were
roasted and blanched or salted, qualified for preferential tariff treat-
ment under the NAFTA when imported into the United States. In NY
F88926 and NY H84143, CBP determined, in relevant part, that raw
macadamia nuts of Australian origin imported into Canada, where
they were roasted and blanched or salted, qualified for preferential
tariff treatment under the NAFTA, and were eligible to be marked as
goods of Canada when imported into the United States. In NY
H82352, CBP determined, in relevant part, that various raw nuts of
U.S., Canadian, Indian and Brazilian origin imported into Canada,
where they were roasted, salted and mixed with oil qualified for
preferential tariff treatment under the NAFTA. In NY R02589, CBP
determined, in relevant part, that raw cashew nuts from non-NAFTA
countries imported into Canada, where they were roasted and salted
and mixed with peanuts of U.S. origin, qualified for preferential tariff
treatment under the NAFTA when the mixture was imported into the
United States. Further, CBP determined that raw, non-originating
cashews and raw, in-shell peanuts of U.S. origin, which were roasted
and mixed together in Canada, were eligible to be marked as goods of
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Canada; while raw, non-originating cashews and raw, shelled peanuts
of U.S. origin were eligible to be marked as products of the United
States. In NY N228118, CBP determined, in relevant part, that raw
cashew nuts from various non-NAFTA countries imported into
Canada, where they were heated, polished, cleaned, roasted (with or
without oil) and salted, qualified for preferential tariff treatment
under the NAFTA.
Based on our recent review of NY E87234, NYF88926, NY H84143,
NY H82352, NY R02589, and NY N228118, it is now CBP’s position
that the prepared nuts do not qualify for preferential tariff treatment
under the NAFTA and, in applicable cases, do not qualify to be
marked as a good of a NAFTA country.
Pursuant to 19 U.S.C. §1625(c)(1), CBP intends to modify NY
E87234, NYF88926, NY H84143, NY H82352, NY R02589, and NY
N228118, and any other ruling not specifically identified that is con-
trary to the determination set forth in this notice to reflect the proper
requirements for prepared nuts to qualify for preferential tariff treat-
ment under the NAFTA and to be marked as a good of a NAFTA
country, pursuant to the analysis set forth in proposed Headquarters
Ruling Letters (HQ) H243329 (Attachment G), HQ H256782 (Attach-
ment H), HQ H256783 (Attachment I), HQ H256785 (Attachment J),
HQ H256784 (Attachment K), and HQ H256781 (Attachment L).
Additionally, pursuant to 19 U.S.C. §1625(c)(2), CBP intends to re-
voke any treatment previously accorded by CBP to substantially
identical transactions that are contrary to the determination set forth
in this notice. Before taking this action, consideration will be given to
any written comments timely received.
Dated: July 9, 2015
M
ONIKA R. BRENNER
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
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[ATTACHMENT A]
NY E87234
October 1, 1999
CLA-2–20:RR:NC:2:231 E87234
CATEGORY: Classification
TARIFF NO.: 2008.19.8500
MS.CAROL HAGYARD
A.N. DERINGER,INC.
1010 N
IAGARA STREET
BUFFALO, NY 14213
RE: The tariff classification and status under the North American Free
Trade Agreement (NAFTA) of a mixture of roasted and salted nuts from
Canada; Article 509
D
EAR MS.HAGYARD:
In your letter, dated September 17, 1999, on behalf of your client, John
Vince Foods, Downsview, Ontario, you have requested a ruling on the status
of mixtures of nuts from Canada under the NAFTA.
The merchandise is a snack product that consists of a mixture of nuts
packed in a can. The ingredients are blanched, extra large Virginia peanuts,
unblanched, jumbo runner peanuts, fancy, whole cashews, almonds, Brazil
nuts, blanched filberts, and pecans that have been roasted separately in
peanut oil and/or partially hydrogenated soybean oil and lightly salted.
Jumbo runner peanuts or medium Virginia peanuts may be used if extra
large Virginia peanuts are not available.
In your correspondence you indicate that raw nuts will be imported into
Canada and roasted, blanched, and/or salted at the John Vince Food plant.
The applicable tariff provision for the mixture of nuts will be 2008.19.8500,
Harmonized Tariff Schedule of the United States (HTS), which provides for
fruit, nuts and other edible parts of plants, otherwise prepared or preserved,
whether or not containing added sugar or other sweetening matter or spirit,
not elsewhere specified or included, nuts, peanuts (ground-nuts) and other
seeds, whether or not mixed together, other, including mixtures, other, in-
cluding mixtures, mixtures. The general rate of duty will be 23.3 percent ad
valorem.
Each of the non-originating materials used to make the mixture of nuts has
satisfied the changes in tariff classification required under HTSUSA General
Note 12(t)/20.4. Upon compliance with all applicable laws, regulations, and
agreements under NAFTA, articles from Canada classifiable in subheading
2008.19.8500, HTS, will be subject to a free rate of duty.
This ruling is being issued under the provisions of Part 181 of the Customs
Regulations (19 CFR 181).
This ruling letter is binding only as to the party to whom it is issued and
may be relied on only by that party.
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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 Thomas Brady at (212) 637–7064.
Sincerely,
R
OBERT B. SWIERUPSKI,
Director
National Commodity Specialist Division
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[ATTACHMENT B]
NY F88926
January 13, 2000
CLA-2–20:RR:NC:2:231 F88926
CATEGORY: Classification and marking
TARIFF NO.: 2008.19.9010
M
S CECELIA CASTELLANOS
WESTERN OVERSEAS CORPORATION
1855 CORONADO AVENUE
LONG BEACH, CA 90804
RE: The tariff classification and country of origin marking under the North
American Free Trade Agreement (NAFTA) of macadamia nut kernels of
Australian origin that are roasted and salted in Canada and exported
to the US; Article 509
D
EAR MS.CASTELLANOS:
In your letter, dated June 20, 2000, on behalf of your client, Macadamia
Processing Company Limited, Lismore, Australia, you requested a ruling on
the tariff classification and country of origin marking of macadamia nut
kernels of Australian origin that are roasted and salted in Canada and
exported to the United States under the NAFTA.
The merchandise is comprised of raw macadamia nut kernels of Australian
origin that are exported in bulk from Australia to Canada for roasting and
salting. The nuts will then be shipped to the United States in bulk vacuum
packaging of 5 or 10 pound bags. The nuts will be sold commercially in the
United States to institutions preparing food; they are not for retail sale as
imported.
In your letter you ask whether the process of roasting and salting qualify
the nuts as “nuts of Canadian origin” for country of origin marking purposes,
and whether they are subject to NAFTA preference for duty purposes.
The applicable subheading for macadamia nuts will be 2008.19.9010, Har-
monized Tariff Schedule of the United States (HTS), which provides for fruit,
nuts and other edible parts of plants, otherwise prepared or preserved,
whether or not containing added sugar or other sweetening matter or spirit,
not elsewhere specified or included, nuts, peanuts (ground-nuts) and other
seeds, whether or not mixed together, other, including mixtures, other, in-
cluding mixtures, other, macadamia nuts. The general rate of duty will be
17.9 percent ad valorem.
Each of the non-originating materials has satisfied the changes in tariff
classification required under HTSUSA General Note 12(t)/20.4. This product
will be entitled to a free rate of duty under the NAFTA upon compliance with
all applicable laws, regulations, and agreements.
The marking rules used for determining whether a good is a good of a
NAFTA country are contained in Part 102, Customs Regulations. Part 102 of
the Customs Regulations sets forth the “Rules of Origin” for the purposes of
determining whether a good is a good of a NAFTA country for marking
purposes. Section 102.11 articulates the required hierarchy for determining
country of origin for marking purposes.
Section 102.11(a)(3) states that the country of origin of a good is the country
in which “each foreign material incorporated in that good undergoes an
applicable change in tariff classification set out in Section 102.20 and satisfies
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
any other applicable requirements of that section, and all other applicable
requirements of these rules are satisfied.” Section 102.20(d) articulates the
tariff shifts that are required for merchandise that is classifiable in chapter
20, HTS.
Applying the NAFTA Marking Rules set forth in Part 102 of the Customs
Regulations to the facts of this case, we find that for marking purposes, these
goods are of Canadian origin. A tariff shift has occurred, as per CR 102.20(d).
Accordingly, raw macadamia nut kernels of Australian origin that are
roasted and salted in Canada and exported to the United States, are products
of Canada for the purposes of country of origin marking.
This ruling is being issued under the provisions of Part 181 of the Customs
Regulations (19 CFR 181).
This ruling letter is binding only as to the party to whom it is issued and
may be relied on only by that party.
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 Thomas Brady at (212) 637–7064.
Sincerely,
R
OBERT B. SWIERUPSKI,
Director
National Commodity Specialist Division
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[ATTACHMENT C]
NY H84143
August 6, 2001
CLA-2–20:RR:NC:2:231 H84143
CATEGORY: Classification and marking
TARIFF NO.: 2008.19.9010
M
R.RODNEY RALSTON
TRANS-BORDER CUSTOMS SERVICES,INC.
O
NE TRANS-BORDER DRIVE
P. O. B OX 800
C
HAMPLAIN, NY 12919
RE: The tariff classification and country of origin marking under the North
American Free Trade Agreement (NAFTA) of macadamia nut kernels of
Australian origin that are roasted and salted in Canada and exported
to the US; Article 509
D
EAR MR.RALSTON:
In your letter, dated July 20, 2001, on behalf of your client, Papco Foods,
Inc., St-Laurent, Québec, you requested a ruling on the tariff classification
and country of origin marking of macadamia nut kernels of Australian origin
that are roasted and salted in Canada and exported to the United States
under the NAFTA.
The merchandise is comprised of raw macadamia nut kernels of Australian
origin that are exported from Australia to Canada for roasting and salting.
The nuts will then be shipped to the United States in bags of 1 or 2 pounds
or in bulk bags of 5 or 10 pounds.
In your letter you ask whether the process of roasting and salting qualify
the nuts as “nuts of Canadian origin” for country of origin marking purposes,
and whether they are subject to NAFTA preference for duty purposes.
The applicable subheading for macadamia nuts will be 2008.19.9010, Har-
monized Tariff Schedule of the United States (HTS), which provides for fruit,
nuts and other edible parts of plants, otherwise prepared or preserved,
whether or not containing added sugar or other sweetening matter or spirit,
not elsewhere specified or included, nuts, peanuts (ground-nuts) and other
seeds, whether or not mixed together, other, including mixtures, other, in-
cluding mixtures, other, macadamia nuts. The general rate of duty will be
17.9 percent ad valorem.
Each of the non-originating materials has satisfied the changes in tariff
classification required under HTSUSA General Note 12(t)/20.4. This product
will be entitled to a free rate of duty under the NAFTA upon compliance with
all applicable laws, regulations, and agreements.
The marking rules used for determining whether a good is a good of a
NAFTA country are contained in Part 102, Customs Regulations. Part 102 of
the Customs Regulations sets forth the “Rules of Origin” for the purposes of
determining whether a good is a good of a NAFTA country for marking
purposes. Section 102.11 articulates the required hierarchy for determining
country of origin for marking purposes.
Section 102.11(a)(3) states that the country of origin of a good is the country
in which “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 applicable
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
requirements of these rules are satisfied.” Section 102.20(d) articulates the
tariff shifts that are required for merchandise that is classifiable in chapter
20, HTS.
Applying the NAFTA Marking Rules set forth in Part 102 of the Customs
Regulations to the facts of this case, we find that for marking purposes, these
goods are of Canadian origin. A tariff shift has occurred, as per CR 102.20(d).
Accordingly, raw macadamia nut kernels of Australian origin that are
roasted and salted in Canada and exported to the United States, are products
of Canada for the purposes of country of origin marking.
This ruling is being issued under the provisions of Part 181 of the Customs
Regulations (19 CFR 181).
This ruling letter is binding only as to the party to whom it is issued and
may be relied on only by that party.
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 Thomas Brady at (212) 637–7064.
Sincerely,
R
OBERT B. SWIERUPSKI,
Director
National Commodity Specialist Division
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[ATTACHMENT D]
NY H82352
August 10, 2001
CLA-2–20:RR:NC:2:231 H82352
CATEGORY: Classification
TARIFF NO.: 2008.19.8500
M
R.STEVE DECASTRO
ALL-WAY S FORWARDING INTERNATIONAL,INC.
701 N
EWARK AVENUE,SUITE 300
E
LIZABETH, NJ 07208
RE: The tariff classification and status under the North American Free
Trade Agreement (NAFTA) of mixtures of roasted and salted nuts from
Canada; Article 509
D
EAR MR.DECASTRO:
In your letter, dated June 11, 2001, on behalf of your client, Star Snacks,
Jersey City, NJ, you have requested a ruling on the status of mixtures of nuts
from Canada under the NAFTA.
The merchandise is described as 16 ounce, retail pack tins of “Mixed Nuts,”
consisting of 26.4 percent by weight of peanuts and 21.55 percent red skin
peanuts (country of origin, Canada or the U.S.A.), 16.46 percent cashews
(origin, India), 13.21 percent Brazil nuts (origin, Brazil) and 11.97 percent
unbleached almonds, 5.98 percent unbleached filberts and 4.49 percent pe-
cans (origin, all U.S.A.).
In your correspondence you indicate that the country of exportation will be
Canada. The condition of the nuts when they are imported into Canada is
sometimes raw and at other times roasted. The nuts are brought into the
country of exportation both in bags and boxes. When the nuts enter Canada
in a raw condition, they are roasted, salted, and mixed with other ingredients
(salt, oil, and other nuts). When the nuts enter Canada in a roasted condition,
Star Snacks will re-salt, re-oil and pack the product in its final export
container.
The applicable subheading for these retail packed “Mixed Nuts” will be
2008.19.8500, Harmonized Tariff Schedule of the United States (HTS), which
provides for fruit, nuts and other edible parts of plants, otherwise prepared
or preserved, whether or not containing added sugar or other sweetening
matter or spirit, not elsewhere specified or included, nuts, peanuts (ground-
nuts) and other seeds, whether or not mixed together, other, including mix-
tures, other, including mixtures, mixtures. The general rate of duty will be
22.4 percent ad valorem.
Regarding the issue of NAFTA origination, your ruling request states that
the nuts, when imported into the country of exportation, will sometimes be
raw, and at other times roasted. The criteria for origination are a chapter
shift. General Note 12(t)/20.4 states, “A change to subheadings 2008.19
through 2008.99 from any other chapter.”
The nuts are:
peanuts
from Canada or the U.S.A.
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almonds, pecans, filberts
from the USA
cashews
from India
Brazil nuts
from Brazil
Accordingly, if the cashews and Brazil nuts are imported raw into Canada,
then each of the non-originating materials used to make the mixture of nuts
has satisfied the changes in tariff classification required under HTSUSA
General Note 12(t)/20.4. Upon compliance with all applicable laws, regula-
tions, and agreements under the NAFTA, articles from Canada classifiable in
subheading 2008.19.8500, HTS, will be subject to a free rate of duty.
If the cashews and/or Brazil nuts are imported roasted into Canada, then
the merchandise does not qualify for preferential treatment under the
NAFTA because one or more of the non-originating materials (the cashews
and/or Brazil nuts) used in the production of the goods will not undergo the
change in tariff classification required by General Note 12(t)/20.4. Under this
scenario, the mixture of nuts will not be considered to be eligible products for
preferential duty treatment under the NAFTA regulations.
Additional requirements may be imposed on these products by the Food
and Drug Administration. You may contact the FDA at
Food and Drug Administration Waterview Corp. Cntr.
10 Waterview Boulevard, 3rd Floor Parsippany, NJ 07054
This ruling is being issued under the provisions of Part 181 of the Customs
Regulations (19 CFR 181).
This ruling is binding only as to the party to whom it is issued and may be
relied on only by that party.
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 Thomas Brady at 212–637–7064.
Sincerely,
R
OBERT B. SWIERUPSKI,
Director
National Commodity Specialist Division
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[ATTACHMENT E]
NY R02589
September 23, 2005
CLA-2–20:RR:NC:2:231 R02589
CATEGORY: Classification
TARIFF NO.: 2008.19.8500
M
S.SHERI G. LAWSON
WILLSON INTERNATIONAL,INC.
250 C
OOPER AVENUE,SUITE 102
T
ONOWANDA, NY 14150
RE: The tariff classification, country of origin marking and status under the
North American Free Trade Agreement (NAFTA), of Mixed Roasted and
Salted Nuts from Canada; Article 509
D
EAR MS.LAWSON:
In your letter dated September 19, 2005, you requested a ruling on the
status of mixed roasted and salted nuts from Canada under the NAFTA on
behalf of your client, John Vince Foods of Ontario, Canada.
The product in question, called “Classic Mix,” is said to consist of 50 percent
by weight of roasted and salted cashews and 50 percent of roasted and salted
peanuts. The cashews are imported into Canada as raw, shelled nuts, and are
the product of Brazil, Indonesia or other offshore countries. The peanuts are
of U.S. origin, and are imported into Canada either blanched and shelled
under tariff heading 2008.11, HTS, or as raw, in-shell peanuts (heading
1202.10).
You state that, in Canada, the cashews and peanuts are oil roasted and
salted individually. The roasted nuts are then layered onto a mixing table
and, as the mixing table is emptied, the product is mixed as it drops into a
tote. The mixed product is then packaged into see-through plastic containers
of 500 grams (17.64 ounces), net, which are then packed for export into the
United States.
The applicable tariff provision for this “Classic Mix” of cashews and pea-
nuts will be 2008.19.8500, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for fruit, nuts and other edible parts of
plants, otherwise prepared or preserved, whether or not containing added
sugar or other sweetening matter or spirit, not elsewhere specified or in-
cluded: nuts, peanuts (ground-nuts) and other seeds, whether or not mixed
together: Other, including mixtures: mixtures. The general rate of duty will
be 22.4 percent ad valorem.
General Note 12(b), HTSUS, sets forth the criteria for determining
whether a good is originating under the NAFTA. General Note 12(b), HTSUS,
(19 U.S.C. § 1202) states, in pertinent part, that
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if—
(i) they are goods wholly obtained or produced entirely in the territory of
Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivisions (r), (s) and (t) of
this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivi-
sions (r), (s) and (t) of this note or the rules set forth therein, or
(iii) they are goods produced entirely in the territory of Canada, Mexico
and/or the United States exclusively from originating materials; or
Based on the facts provided, the goods described above qualify as originat-
ing goods, because they will meet the requirements of HTSUSA General Note
12(b)(iii). General Note 12(a)(i), HTSUS, requires, however, that, in order to
be eligible for NAFTA preferential treatment, such goods must also qualify to
be marked as goods of Canada under the terms of the marking rules set forth
in regulations issued by the Secretary of the Treasury.
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 con-
tainer) 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 coun-
try 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. (Emphasis added).
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 Mark-
ing 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.
You state that the imported mixture of roasted cashews and roasted pea-
nuts are processed in Canada prior to being imported into the U.S. Since
Canada is defined under 19 CFR 134.1(g), as a NAFTA country, we must first
100
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
apply the NAFTA Marking Rules in order to determine whether the imported
mixture is a “good of a NAFTA country”, and thus subject to the NAFTA
marking requirements.
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 of the regulations
to the facts of this case, we find two results. When the “Classic Mix” is
processed from raw, shelled cashews of foreign origin and raw, in-shell pea-
nuts of U.S. origin, that product is a good of Canada for marking purposes.
When the “Classic Mix” is processed from raw, shelled cashews of foreign
origin and blanched and shelled peanuts of U.S. origin, that product is a good
of the United States for marking purposes.
Accordingly, under the first set of facts, the “Classic Mix” will be subject to
the marking regulations in 19 U.S.C. § 1304, and must be marked as a
“Product of Canada.” Under the second set of facts, as U.S. goods, the “Classic
Mix” is not subject to the marking regulations in 19 U.S.C. § 1304, since it
would not be considered a foreign good. The Federal Trade Commission
(rather than the Bureau of Customs and Border Protection) regulates the
marking of American goods.
For duty purposes, Part 102.19(b) of the regulations provides that, when
goods, whose country of origin is determined to be the United States, are
returned, after having been advanced in value or improved in condition in
another NAFTA country, the country of origin of such good for Customs duty
purposes is the last NAFTA country in which that good was advanced in value
or improved in condition before its return to the United States. Accordingly,
under either set of facts, the “Classic Mix” of roasted and salted cashews and
peanuts will be entitled to a Free rate of duty under the NAFTA upon
compliance with all applicable laws, regulations, and agreements.
This ruling is being issued under the provisions of Part 181 of the Customs
Regulations (19 C.F.R. 181).
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 Thomas P. Brady at 646–733–3030.
Sincerely,
R
OBERT B. SWIERUPSKI,
Director
National Commodity Specialist Division
101
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT F]
NY N228118
August 8, 2012
CLA-2–20:OT:RR:NC:N2:231
CATEGORY: Classification
TARIFF NO.: 2008.19.1040
M
R.KEVIN J. SULLIVAN
BAKER &MCKENZIE LLP
815 C
ONNECTICUT AVE., NW
W
ASHINGTON, DC 20006–4078
RE: The tariff classification and status under the North American Free
Trade Agreement (NAFTA), of roasted and salted cashews from
Canada; Article 509
D
EAR MR.SULLIVAN:
In your letter dated July 26, 2012, you requested a ruling on the status of
roasted, salted cashews from Canada under the NAFTA. Your letter was
submitted on behalf of your client, Harvest Manor Farms, LLC (El Paso, TX).
You have outlined a scenario in which raw, shelled cashews will initially be
imported into Canada from various suppliers from non-NAFTA countries. In
Canada, the nuts will first be inspected and subjected to a heat process
intended to bring them to an ambient temperature to control breakage during
subsequent processing. After heating, the cashews will be re-inspected and
then polished and cleaned by being passed through a high-efficiency aspira-
tor. The cashews will then be placed into either an oil or dry roaster. After
roasting, the nuts will undergo a salting operation. After salting, the cashews
will be inspected again and then packed, either whole or halved, in retail
containers of various types and sizes. They will then be imported into the
United States. You state that the ingredients of the finished, imported mer-
chandise will be cashews, sea salt and peanut oil (from the roaster).
The applicable tariff provision for the roasted, salted cashews will be
2008.19.1040, Harmonized Tariff Schedule of the United States (HTSUS),
which provides for fruit, nuts and other edible parts of plants, otherwise
prepared or preserved, whether or not containing added sugar or other
sweetening matter or spirit, not elsewhere specified or included: nuts, pea-
nuts (ground-nuts) and other seeds, whether or not mixed together: other,
including mixtures: Brazil nuts and cashews: cashews. The general rate of
duty will be free.
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/.
General Note 12(a)(i), HTSUS, requires, for NAFTA eligibility, that goods
produced in Canada must originate in the territory of a NAFTA party, under
the terms of GN 12, and that they qualify to be marked as goods of Canada
under the terms of the marking rules for NAFTA goods.
General Note 12(b), HTSUS, sets forth the criteria for determining
whether a good is originating under the NAFTA. General Note 12(b), HTSUS,
(19 U.S.C. § 1202) states, in pertinent part, that
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if—
(i) they are goods wholly obtained or produced entirely in the territory of
Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivisions (r), (s) and (t) of
this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivi-
sions (r), (s) and (t) where no change in tariff classification is required,
and the goods satisfy all other requirements of this note; or
(iii) they are goods produced entirely in the territory of Canada, Mexico
and/or the United States exclusively from originating materials; or ...
Based on the facts provided, the goods described above will meet the
requirements of HTSUS General Note 12(b)(ii)(A), via GN 12(t)20.4. (GN
12(s)(ii), which sets forth an exception for products that merely undergo
roasting or other specified processing, is not triggered here because the nuts
at issue additionally undergo a salting process after roasting.) Similarly, the
goods qualify to be marked as goods of Canada under the NAFTA marking
rules (19 CFR 102.11(a)(3), via §102.20 (d)).
In light of the foregoing, the imported roasted, salted cashew nuts are
originating goods under the NAFTA and will qualify for NAFTA preferential
treatment.
This merchandise is subject to The Public Health Security and Bioterror-
ism 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 181 of the Customs
Regulations (19 C.F.R. 181).
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 Nathan Rosenstein at (646) 733–3030.
Sincerely,
T
HOMAS J. RUSSO
Director
National Commodity Specialist Division
103
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT G]
HQ H243329
OT:RR:CTF:VS H243329 AJR
CATEGORY: NAFTA
M
S.CAROL HAGYARD
A.N. DERINGER,INC.
173 W
EST SERVICE ROAD
CHAMPLAIN, NY 12919
RE: Modification of NY E87234; NAFTA; GN 12, HTSUS; Mixture of
Roasted and Salted Nuts from Canada
D
EAR MS.HAGYARD:
This is in reference to New York Ruling Letter (“NY”) E87234, dated
October 1, 1999, issued to you on behalf of your client, John Vince Foods of
Downsview, Ontario. At issue was the tariff classification of mixed nuts and
their eligibility for preferential tariff treatment under the North American
Free Trade Agreement (“NAFTA”). In NY E87234, U.S. Customs and Border
Protection (“CBP”) determined, in relevant part, that various raw nuts of
unspecified origins imported into Canada, where they were roasted and
blanched or salted, qualified for preferential tariff treatment under the
NAFTA when imported into the United States; however, the decision failed to
consider whether the nuts qualified to be marked as a product of Canada. It
is now our position that the nuts do not qualify for preferential tariff treat-
ment under the NAFTA. For the reasons described in this ruling, we hereby
modify NY E87234.
The tariff classification of the roasted and blanched or salted nut mixture
under the Harmonized Tariff Schedule of the United States (“HTSUS”) when
imported from Canada is unaffected.
FACTS:
NY E87234 stated, in relevant part:
The merchandise is a snack product that consists of a mixture of nuts
packed in a can. The ingredients are blanched, extra large Virginia peanuts,
unblanched, jumbo runner peanuts, fancy, whole cashews, almonds, Brazil
nuts, blanched filberts, and pecans that have been roasted separately in
peanut oil and/or partially hydrogenated soybean oil and lightly salted.
Jumbo runner peanuts or medium Virginia peanuts may be used if extra
large Virginia peanuts are not available.
In your correspondence you indicate that raw nuts will be imported into
Canada and roasted, blanched, and/or salted at the John Vince Food plant.
CBP found that each of the non-originating nuts used to make the nut
mixture, classified in subheading 2008.19.85, HTSUS, satisfied the changes
in tariff classification required under General Note (“GN”) 12(t)/20.4, HT-
SUS, and that, upon compliance with all applicable laws, regulations, and
agreements under the NAFTA, the nut mixture would be subject to a free
tariff rate when imported into the United States.
ISSUE:
Whether the nut mixture described in NY E87234 qualifies for preferential
tariff treatment under the NAFTA?
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
LAW AND ANALYSIS:
Pursuant to GN 12, HTSUS, for an article to be eligible for NAFTA pref-
erence, two requirements must be satisfied. First, the article in question
must be “originating” under the terms of GN 12, HTSUS, and second, the
article must qualify to be marked as a good of a NAFTA country under the
NAFTA Marking Rules contained in 19 CFR § 102.20.
With regard to the first requirement, GN 12(b), HTSUS, provides, in per-
tinent part:
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if –
...
ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivision (r), (s) and (t) of this
note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivision
(r), (s) and (t) where no change in tariff classification is required, and the
goods satisfy all other requirements of this note [.]
Raw nuts are classified under various headings of Chapter 8, HTSUS. In
understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of
the Harmonized Commodity Description and Coding System may be utilized.
The ENs, although not dispositive or legally binding, provide a commentary
on the scope of each heading, and are generally indicative of the proper
interpretation of the Harmonized System at the international level. See T.D.
89–80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to Chapter 8, HTSUS,
explain that nuts prepared according to Chapter 20, HTSUS, are excluded
from Chapter 8, HTSUS. Mixed nut preparations are classified under sub-
heading 2008.19, HTSUS. The ENs to heading 2008, HTSUS, explain that
this heading includes oil-roasted nuts whether or not containing or coated
with salt. In this case, various types of raw nuts were imported from unspeci-
fied countries into Canada, where they were roasted and blanched and/or
salted, and thus correctly classified under subheading 2008.19.85, HTSUS.
The applicable rule in subdivision (t) provides for “a change to subheadings
2008.19 through 2008.99 from any other chapter.” See GN 12(t)/20.4, HTSUS.
However, GN 12(s), Exceptions to Change in Tariff Classification Rules,
HTSUS, provides, in relevant part:
(ii) Fruit, nut and vegetable preparations of chapter 20 that have been
prepared or preserved merely by freezing, by packing (including canning)
in water, brine or natural juices, or by roasting, either dry or in oil
(including processing incidental to freezing, packing, or roasting), shall be
treated as an originating good only if the fresh good were wholly produced
or obtained entirely in the territory of one or more NAFTA parties.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Accordingly, though the non-originating nuts appear to undergo the requi-
site tariff shift from Chapter 8, HTSUS, to subheading 2008.19.85, HTSUS,
if the above exception applies, then the nuts do qualify for preferential tariff
treatment under the NAFTA.
As provided in relevant part by GN 12(s)(ii), HTSUS, when nut prepara-
tions are prepared “merely” by roasting or processing “incidental” to roasting,
then the origin of the nuts in their “fresh” state determines the origin of the
good. The “fresh” state refers to the state of the nuts before they were roasted
or processed in a manner incidental to roasting. Thus, for such nut prepara-
tions to be originating, the “fresh” nuts used to make the good must be wholly
obtained or produced entirely in the territory of one or more of NAFTA parties
(Mexico, Canada, or the United States). That is, non-originating nuts that,
while in a NAFTA territory, are merely roasted, or processed in a manner
incidental to roasting, will not be treated as originating nuts.
The term “merely” is not specifically defined in GN 12, HTSUS, but per its
dictionary definition means “only (what is referred to) and nothing more.”
Read in the context of GN 12, HTSUS, the term “merely” means that the
processes listed in GN 12(s)(ii), HTSUS, by themselves, are insufficient to
qualify non-originating nuts for preferential tariff treatment under the
NAFTA, despite changing tariff classifications per GN 12(b)(ii), HTSUS, and
GN 12(t)/20.4, HTSUS. Thus, we find that the purpose of GN 12(s)(ii), HT-
SUS, is to ensure that goods undergo sufficient processing in a NAFTA
country, beyond the listed processes, in order to be considered originating for
purposes of GN 12(b)(ii), HTSUS.
The term “incidental” is also not specifically defined in GN 12, HTSUS, but
per its dictionary definition means “occurring or liable to occur in fortuitous
or subordinate conjunction with something else of which it forms no essential
part.” Applying this definition to GN 12(s)(ii), HTSUS, the term “incidental”
indicates a process that may happen with or as a result of roasting, but is
secondary to, or of lesser importance than, the process of roasting.
We find that “salting” is precisely the type of lesser process contemplated
by the note as incidental. Salting often occurs in connection not only with
roasting, as in this case, but also with canning or freezing. It is the roasting,
canning, or freezing processes which are the means by which the products are
principally prepared. By contrast, salting has far less consequences to the
essential character of the product. Moreover, the addition of salt like other
flavors, spices, or other ingredients is a relatively simply process and does not
require a prescribed amount to be added.
Given that roasting by itself would not be sufficient to make a nut an
originating good per GN 12 (s)(ii), HTSUS, it would defeat the purpose of such
note to conclude that “salting” would provide otherwise. Furthermore, the
ENs to Chapter 20, HTSUS, state, in relevant part:
This heading covers fruits, nuts and other edible parts of plants, whether
whole, in pieces or crushed, including mixtures thereof, prepared or pre-
served otherwise than by any of the processes specified in other Chapters or
in the preceding headings of this Chapter.
It includes, inter alia:
(1) Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-
roasted, oil roasted or fat-roasted, whether or not containing or coated
with vegetable oil, salt, flavours, spices or other additives.
...
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(9) Fruit, nuts, fruit-peel and other edible parts of plants (other than
vegetables), preserved by sugar and put in syrup (e.g. marrons glacés or
giner), whatever the packing.
Moreover, while the ENs to Chapter 20, HTSUS, mention “salt,” the ref-
erences to “dry-roasted, oil-roasted or fat-roasted” and “preserved by sugar
and put in syrup” indicate the principal processes of preparation or preser-
vation that would change the classification of nuts from Chapter 8, HTSUS,
to Chapter 20, HTSUS. The fact that “salt” is mentioned with reference to the
types of roasting, but is not specifically mentioned as a process of preparation
or preservation, suggests that “salting” is something that may happen with or
as a result of roasting nuts, but whether the nuts are salted, or not, is not
essential to the preparation; what is essential to the preparation is the
roasting. For all of the foregoing reasons, we find that for purposes of GN
12(s)(ii), HTSUS, the term “processing incidental to freezing, packing, or
roasting,” includes the process of “salting.”
This interpretation of GN 12(s)(ii), HTSUS, is further supported by Head-
quarters Ruling Letter (“HQ”) H243328, dated August 19, 2013, which con-
sidered “salting” to be a process incidental to roasting with regard to a
provision from the United States-Korea Free Trade Agreement (“UKFTA”)
that is parallel to GN 12(s)(ii), HTSUS. HQ H243328 affirms the decision in
HQ H240383, dated May 3, 2013, determining the origin of the nuts from
their “fresh” state on the basis that “salting and roasting [...] qualify as
‘processing incidental’ to roasting.”
Accordingly, we find that salting is a process incidental to roasting and does
not render the product originating. Rather, the origin of the product is
determined by the origin of the “fresh” state per GN 12(s)(ii), HTSUS.
Given the foregoing, the roasted, blanched and/or salted mixed nuts may
not be treated as originating because they do not meet the requirements of
GN 12(s)(ii), HTSUS; that is, they were not wholly obtained or produced
entirely in Mexico, Canada, or the United States as fresh nuts. Therefore, the
prepared mixed nuts imported from Canada do not qualify for preferential
tariff treatment under the NAFTA.
HOLDING:
NY E87234 is modified to reflect that, by application of GN 12(s)(ii), HT-
SUS, the prepared nut mixture imported from Canada is not eligible for
preferential tariff treatment under the NAFTA. The tariff classification of the
prepared nut mixture, subheading 2008.19.85, HTSUS, is unchanged.
EFFECT ON OTHER RULINGS:
NY E87234, dated October 1, 1999, is hereby MODIFIED. In accordance
with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after
publication in the Customs Bulletin.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT H]
HQ H256782
OT:RR:CTF:VS H256782 AJR
CATEGORY: NAFTA
M
S.CECELIA CASTELLANOS
WESTERN OVERSEAS CORPORATION
10731 WALKER STREET
CYPRESS, CA 90630–4757
RE: Modification of NY F88926; NAFTA; GN 12, HTSUS; 19 C.F.R.
§ 102.20 - Country of Origin Marking; Macadamia Nuts Roasted and
Salted in Canada
D
EAR MS.CASTELLANOS:
This is in reference to New York Ruling Letter (“NY”) F88926, dated
January 13, 2000, issued to you on behalf of your client, Macadamia Process-
ing Company Limited of Lismore, Australia. At issue was the tariff classifi-
cation of macadamia nuts, their eligibility for preferential tariff treatment
under the North American Free Trade Agreement (“NAFTA”), and their
country of origin marking. In NY F88926, U.S. Customs and Border Protec-
tion (“CBP”) determined, in relevant part, that raw macadamia nuts of
Australian origin imported into Canada, where they were roasted and
blanched or salted, qualified for preferential tariff treatment under the
NAFTA when imported into the United States. In addition, CBP found that
the prepared nuts qualified to be marked as goods of Canada. It is now our
position that the nuts do not qualify for preferential tariff treatment under
the NAFTA, and do not qualify to be marked as goods of Canada. For the
reasons described in this ruling, we hereby modify NY F88926.
The tariff classification of the roasted and salted macadamia nuts under
subheading 2008.19.9010 of the Harmonized Tariff Schedule of the United
States (“HTSUS”), when imported from Canada, is unaffected.
FACTS:
NY F88926 stated, in relevant part:
The merchandise is comprised of raw macadamia nut kernels of Australian
origin that are exported in bulk from Australia to Canada for roasting and
salting. The nuts will then be shipped to the United States in bulk vacuum
packaging of 5 or 10 pound bags. The nuts will be sold commercially in the
United States to institutions preparing food; they are not for retail sale as
imported.
CBP found that the non-originating macadamia nuts satisfied the changes
in tariff classification required under General Note (“GN”) 12(t)/20.4, HT-
SUS, and that, upon compliance with all applicable laws, regulations, and
agreements under the NAFTA, the nuts would be subject to a free tariff rate
when imported into the United States. CBP also found that the nuts qualified
to be marked as goods of Canada under the NAFTA Marking Rules (19 CFR
§§ 102.11(a)(3) and 102.20(d)).
ISSUE:
Whether the roasted and salted macadamia nuts described in NY F88926
qualify for preferential tariff treatment under the NAFTA, and whether they
may be marked as goods of Canada?
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
LAW AND ANALYSIS:
Pursuant to GN 12, HTSUS, for an article to be eligible for NAFTA pref-
erence, two requirements must be satisfied. First, the article in question
must be “originating” under the terms of GN 12, HTSUS, and second, the
article must qualify to be marked as a good of a NAFTA country under the
NAFTA Marking Rules contained in 19 CFR § 102.20.
With regard to the first requirement, GN 12(b), HTSUS, provides, in per-
tinent part:
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if –
....
ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivision (r), (s) and (t) of this
note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivision
(r), (s) and (t) where no change in tariff classification is required, and the
goods satisfy all other requirements of this note [.]
Raw macadamia nuts are classified in subheading 0802.90, HTSUS. In
understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of
the Harmonized Commodity Description and Coding System may be utilized.
The ENs, although not dispositive or legally binding, provide a commentary
on the scope of each heading, and are generally indicative of the proper
interpretation of the Harmonized System at the international level. See T.D.
89–80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to Chapter 8, HTSUS,
explain that nuts prepared according to Chapter 20, HTSUS, are excluded
from Chapter 8, HTSUS. Roasted and salted macadamia nuts are classified
under subheading 2008.19.9010, HTSUS. The ENs to heading 2008, HTSUS,
explain that this heading includes oil-roasted nuts whether or not containing
or coated with salt. In this case, raw macadamia nuts were imported from
Australia into Canada, where they were roasted and salted, and thus cor-
rectly classified under subheading 2008.19.9010, HTSUS.
The applicable rule in subdivision (t) provides for “a change to subheadings
2008.19 through 2008.99 from any other chapter.” See GN 12(t)/20.4, HTSUS.
However, GN 12(s), Exceptions to Change in Tariff Classification Rules,
HTSUS, provides, in relevant part:
(ii) Fruit, nut and vegetable preparations of chapter 20 that have been
prepared or preserved merely by freezing, by packing (including canning)
in water, brine or natural juices, or by roasting, either dry or in oil
(including processing incidental to freezing, packing, or roasting), shall be
treated as an originating good only if the fresh good were wholly produced
or obtained entirely in the territory of one or more NAFTA parties.
109
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Accordingly, though the non-originating nuts appear to undergo the requi-
site tariff shift from Chapter 8, HTSUS, to subheading 2008.19.9010, HT-
SUS, if the above exception applies, then the nuts do qualify for preferential
tariff treatment under the NAFTA.
As provided in relevant part by GN 12(s)(ii), HTSUS, when nut prepara-
tions are prepared “merely” by roasting or processing “incidental” to roasting,
then the origin of the nuts in their “fresh” state determines the origin of the
good. The “fresh” state refers to the state of the nuts before they were roasted
or processed in a manner incidental to roasting. Thus, for such nut prepara-
tions to be originating, the “fresh” nuts used to make the good must be wholly
obtained or produced entirely in the territory of one or more of NAFTA parties
(Mexico, Canada, or the United States). That is, non-originating nuts that,
while in a NAFTA territory, are merely roasted, or processed in a manner
incidental to roasting, will not be treated as originating nuts.
The term “merely” is not specifically defined in GN 12, HTSUS, but per its
dictionary definition means “only (what is referred to) and nothing more.”
Read in the context of GN 12, HTSUS, the term “merely” means that the
processes listed in GN 12(s)(ii), HTSUS, by themselves, are insufficient to
qualify non-originating nuts for preferential tariff treatment under the
NAFTA, despite changing tariff classifications per GN 12(b)(ii), HTSUS, and
GN 12(t)/20.4, HTSUS. Thus, we find that the purpose of GN 12(s)(ii), HT-
SUS, is to ensure that goods undergo sufficient processing in a NAFTA
country, beyond the listed processes, in order to be considered originating for
purposes of GN 12(b)(ii), HTSUS.
The term “incidental” is also not specifically defined in GN 12, HTSUS, but
per its dictionary definition means “occurring or liable to occur in fortuitous
or subordinate conjunction with something else of which it forms no essential
part.” Applying this definition to GN 12(s)(ii), HTSUS, the term “incidental”
indicates a process that may happen with or as a result of roasting, but is
secondary to, or of lesser importance than, the process of roasting.
We find that “salting” is precisely the type of lesser process contemplated
by the note as incidental. Salting often occurs in connection not only with
roasting, as in this case, but also with canning or freezing. It is the roasting,
canning, or freezing processes which are the means by which the products are
principally prepared. By contrast, salting has far less consequences to the
essential character of the product. Moreover, the addition of salt like other
flavors, spices, or other ingredients is a relatively simply process and does not
require a prescribed amount to be added.
Given that roasting by itself would not be sufficient to make a nut an
originating good per GN 12 (s)(ii), HTSUS, it would defeat the purpose of such
note to conclude that “salting” would provide otherwise. Furthermore, the
ENs to Chapter 20, HTSUS, state, in relevant part:
This heading covers fruits, nuts and other edible parts of plants, whether
whole, in pieces or crushed, including mixtures thereof, prepared or pre-
served otherwise than by any of the processes specified in other Chapters or
in the preceding headings of this Chapter.
It includes, inter alia:
(1) Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-
roasted, oil roasted or fat-roasted, whether or not containing or coated
with vegetable oil, salt, flavours, spices or other additives.
...
110
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(9) Fruit, nuts, fruit-peel and other edible parts of plants (other than
vegetables), preserved by sugar and put in syrup (e.g. marrons glacés or
giner), whatever the packing.
Moreover, while the ENs to Chapter 20, HTSUS, mention “salt,” the ref-
erences to “dry-roasted, oil-roasted or fat-roasted” and “preserved by sugar
and put in syrup” indicate the principal processes of preparation or preser-
vation that would change the classification of nuts from Chapter 8, HTSUS,
to Chapter 20, HTSUS. The fact that “salt” is mentioned with reference to the
types of roasting, but is not specifically mentioned as a process of preparation
or preservation, suggests that “salting” is something that may happen with or
as a result of roasting nuts, but whether the nuts are salted, or not, is not
essential to the preparation; what is essential to the preparation is the
roasting. For all of the foregoing reasons, we find that for purposes of GN
12(s)(ii), HTSUS, the term “processing incidental to freezing, packing, or
roasting,” includes the process of “salting.”
This interpretation of GN 12(s)(ii), HTSUS, is further supported by Head-
quarters Ruling Letter (“HQ”) H243328, dated August 19, 2013, which con-
sidered “salting” to be a process incidental to roasting with regard to a
provision from the United States-Korea Free Trade Agreement (“UKFTA”)
that is parallel to GN 12(s)(ii), HTSUS. HQ H243328 affirms the decision in
HQ H240383, dated May 3, 2013, determining the origin of the nuts from
their “fresh” state on the basis that “salting and roasting [...] qualify as
‘processing incidental’ to roasting.”
Accordingly, we find that salting is a process incidental to roasting and does
not render the product originating. Rather, the origin of the product is
determined by the origin of the “fresh” state per GN 12(s)(ii), HTSUS.
Given the foregoing, the roasted and salted macadamia nuts may not be
treated as originating because they do not meet the requirements of GN
12(s)(ii), HTSUS; that is, they were not wholly obtained or produced entirely
in Mexico, Canada, or the United States as fresh nuts. Therefore, the pre-
pared macadamia nuts imported from Canada do not qualify for preferential
tariff treatment under the NAFTA.
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 (or its container)
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 con-
tainer) 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.” United States
v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, CBP
Regulations (19 CFR Part 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:
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[T]he country of manufacture, production, or growth of any article of for-
eign 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]; however, for a good of a NAFTA country, the
NAFTA Marking Rules will determine the country of origin.
Part 102, CBP Regulations (19 CFR Part 102), sets forth the NAFTA Rules
of Origin for country of origin marking purposes. As the macadamia nuts
were grown in Australia, Section 102.11(a)(1) and (2) do not apply. Section
102.11(a)(3) provides:
The country of origin of a good is the country in which ... each foreign
material incorporated in that good undergoes an applicable change in tariff
classification set out in § 102.20 and satisfies any other applicable require-
ments of that section, and all other applicable requirements of these rules are
satisfied.
“Foreign material means a material whose country of origin as determined
under these rules is not the same as the country in which the good is
produced.” 19 CFR § 102.1(e).
Under the provisions of 19 CFR § 102.20, the tariff shift rule for subheading
2008.19, HTSUS, provides as follows:
A change to subheading 2008.19 through 2008.99 from any other chapter,
provided that the change is not the result of mere blanching of nuts.
However, the note from Chapter 20, HTSUS, provides:
Notwithstanding the specific rules of this chapter, fruit, nut and vegetable
preparations of Chapter 20 that have been prepared or preserved merely by
freezing, by packing (including canning) in water, brine or natural juices, or
by roasting, either dry or in oil (including processing incidental to freezing,
packing or roasting), shall be treated as a good of the country in which the
fresh good was produced.
Based on the note from Chapter 20, HTSUS, the country of origin of the
macadamia nuts is not determined by 19 CFR § 102.11(a) (incorporating 19
CFR § 102.20), and the next step in the country of origin marking determi-
nation is provided in 19 CFR § 102.11(b), which states:
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,
where the country of origin cannot be determined under paragraph (a) of this
section:
(1) The country of origin of the good is the country or countries of origin
of the single material that imparts the essential character of the good...
“‘Material’ means a good that is incorporated into another good as a result
of production with respect to that other good, and includes parts, ingredients,
subassemblies, and components.” 19 CFR § 102.1 (l).
“For purposes of identifying the material that imparts the essential char-
acter to a good under §102.11, the only materials that shall be taken into
consideration are those domestic or foreign materials that are classified in a
tariff provision from which a change in tariff classification is not allowed
under the §102.20 specific rule or other requirements applicable to the good.”
19 CFR § 102.18(b)(1).
Pursuant to 19 CFR § 102.11(b) (incorporating 19 CFR § 102.18(b)(1)), we
find that the single material that imparts the essential character of the
finished good is the macadamia nuts. Therefore, the prepared macadamia
112
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
nuts may not be marked as goods of Canada, but rather must be marked to
indicate that they are products of Australia.
HOLDING:
NY F88926 is modified to reflect that, by application of GN 12(s)(ii), HT-
SUS, the prepared macadamia nuts imported from Canada are not eligible
for preferential tariff treatment under the NAFTA. In addition, by applica-
tion of the note from Chapter 20, HTSUS, 19 CFR § 102.11(a) and (b), 19 CFR
§ 102.18(b) (1), and 19 CFR § 102.20, the prepared macadamia nuts may not
be marked as goods of Canada, but rather must be marked to indicate that
they are products of Australia. The tariff classification of the prepared maca-
damia nuts is unchanged.
EFFECT ON OTHER RULINGS:
NY F88926, dated January 13, 2000, is hereby MODIFIED. In accordance
with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after
publication in the Customs Bulletin.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
113
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT I]
HQ H256783
OT:RR:CTF:VS H256783 AJR
CATEGORY: NAFTA
M
R.RODNEY RALSTON
TRANS-BORDER CUSTOMS SERVICES,INC.
O
NE TRANS-BORDER DRIVE
P. O. B OX 800
C
HAMPLAIN, NY 12919
RE: Modification of NY H84143; NAFTA; GN 12, HTSUS; 19 C.F.R.
§ 102.20 - Country of Origin Marking; Macadamia Nuts Roasted and
Salted in Canada
D
EAR MR.RALSTON:
This is in reference to New York Ruling Letter (“NY”) H84143, dated
August 6, 2001, issued to you on behalf of your client, Papco Foods, Inc., of St.
Laurent, Quebec. At issue was the tariff classification of macadamia nuts,
their eligibility for preferential tariff treatment under the North American
Free Trade Agreement (“NAFTA”), and their county of origin marking. In NY
H84143, U.S. Customs and Border Protection (“CBP”) determined, in rel-
evant part, that raw macadamia nuts of Australian origin imported into
Canada, where they were roasted and blanched or salted, qualified for pref-
erential tariff treatment under the NAFTA when imported into the United
States. In addition, CBP found that the prepared nuts qualified to be marked
as goods of Canada. It is now our position that the nuts do not qualify for
preferential tariff treatment under the NAFTA, and do not qualify to be
marked as goods of Canada. For the reasons described in this ruling, we
hereby modify NY H84143.
The tariff classification of the roasted and salted macadamia nuts under
subheading 2008.19.9010 of the Harmonized Tariff Schedule of the United
States (“HTSUS”), when imported from Canada, is unaffected.
FACTS:
NY H84143 stated, in relevant part:
The merchandise is comprised of raw macadamia nut kernels of Australian
origin that are exported in bulk from Australia to Canada for roasting and
salting. The nuts will then be shipped to the United States in bags of 1 or 2
pounds or in bulk bags of 5 or 10 pound bags.
CBP found that the non-originating macadamia nuts satisfied the changes
in tariff classification required under General Note (“GN”) 12(t)/20.4, HT-
SUS, and that, upon compliance with all applicable laws, regulations, and
agreements under the NAFTA, the nuts would be subject to a free tariff rate
when imported into the United States. CBP also found that the nuts qualified
to be marked as goods of Canada under the NAFTA Marking Rules (19 CFR
§§ 102.11(a)(3) and 102.20(d)).
ISSUE:
Whether the roasted and salted macadamia nuts described in NY H84143
qualify for preferential tariff treatment under the NAFTA, and whether they
may be marked as goods of Canada?
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
LAW AND ANALYSIS:
Pursuant to GN 12, HTSUS, for an article to be eligible for NAFTA pref-
erence, two requirements must be satisfied. First, the article in question
must be “originating” under the terms of GN 12, HTSUS, and second, the
article must qualify to be marked as a good of a NAFTA country under the
NAFTA Marking Rules contained in 19 CFR § 102.20.
With regard to the first requirement, GN 12(b), HTSUS, provides, in per-
tinent part:
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if –
....
ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivision (r), (s) and (t) of this
note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivision
(r), (s) and (t) where no change in tariff classification is required, and the
goods satisfy all other requirements of this note [.]
Raw macadamia nuts are classified in subheading 0802.90, HTSUS. In
understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of
the Harmonized Commodity Description and Coding System may be utilized.
The ENs, although not dispositive or legally binding, provide a commentary
on the scope of each heading, and are generally indicative of the proper
interpretation of the Harmonized System at the international level. See T.D.
89–80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to Chapter 8, HTSUS,
explain that nuts prepared according to Chapter 20, HTSUS, are excluded
from Chapter 8, HTSUS. Roasted and salted macadamia nuts are classified
under subheading 2008.19.9010, HTSUS. The ENs to heading 2008, HTSUS,
explain that this heading includes oil-roasted nuts whether or not containing
or coated with salt. In this case, raw macadamia nuts were imported from
Australia into Canada, where they were roasted and salted, and thus cor-
rectly classified under subheading 2008.19.9010, HTSUS.
The applicable rule in subdivision (t) provides for “a change to subheadings
2008.19 through 2008.99 from any other chapter.” See GN 12(t)/20.4, HTSUS.
However, GN 12(s), Exceptions to Change in Tariff Classification Rules,
HTSUS, provides, in relevant part:
(ii) Fruit, nut and vegetable preparations of chapter 20 that have been
prepared or preserved merely by freezing, by packing (including canning) in
water, brine or natural juices, or by roasting, either dry or in oil (including
processing incidental to freezing, packing, or roasting), shall be treated as an
originating good only if the fresh good were wholly produced or obtained
entirely in the territory of one or more NAFTA parties.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Accordingly, though the non-originating nuts appear to undergo the requi-
site tariff shift from Chapter 8, HTSUS, to subheading 2008.19.9010, HT-
SUS, if the above exception applies, then the nuts do qualify for preferential
tariff treatment under the NAFTA.
As provided in relevant part by GN 12(s)(ii), HTSUS, when nut prepara-
tions are prepared “merely” by roasting or processing “incidental” to roasting,
then the origin of the nuts in their “fresh” state determines the origin of the
good. The “fresh” state refers to the state of the nuts before they were roasted
or processed in a manner incidental to roasting. Thus, for such nut prepara-
tions to be originating, the “fresh” nuts used to make the good must be wholly
obtained or produced entirely in the territory of one or more of NAFTA parties
(Mexico, Canada, or the United States). That is, non-originating nuts that,
while in a NAFTA territory, are merely roasted, or processed in a manner
incidental to roasting, will not be treated as originating nuts.
The term “merely” is not specifically defined in GN 12, HTSUS, but per its
dictionary definition means “only (what is referred to) and nothing more.”
Read in the context of GN 12, HTSUS, the term “merely” means that the
processes listed in GN 12(s)(ii), HTSUS, by themselves, are insufficient to
qualify non-originating nuts for preferential tariff treatment under the
NAFTA, despite changing tariff classifications per GN 12(b)(ii), HTSUS, and
GN 12(t)/20.4, HTSUS. Thus, we find that the purpose of GN 12(s)(ii), HT-
SUS, is to ensure that goods undergo sufficient processing in a NAFTA
country, beyond the listed processes, in order to be considered originating for
purposes of GN 12(b)(ii), HTSUS.
The term “incidental” is also not specifically defined in GN 12, HTSUS, but
per its dictionary definition means “occurring or liable to occur in fortuitous
or subordinate conjunction with something else of which it forms no essential
part.” Applying this definition to GN 12(s)(ii), HTSUS, the term “incidental”
indicates a process that may happen with or as a result of roasting, but is
secondary to, or of lesser importance than, the process of roasting.
We find that “salting” is precisely the type of lesser process contemplated
by the note as incidental. Salting often occurs in connection not only with
roasting, as in this case, but also with canning or freezing. It is the roasting,
canning, or freezing processes which are the means by which the products are
principally prepared. By contrast, salting has far less consequences to the
essential character of the product. Moreover, the addition of salt like other
flavors, spices, or other ingredients is a relatively simply process and does not
require a prescribed amount to be added.
Given that roasting by itself would not be sufficient to make a nut an
originating good per GN 12 (s)(ii), HTSUS, it would defeat the purpose of such
note to conclude that “salting” would provide otherwise. Furthermore, the
ENs to Chapter 20, HTSUS, state, in relevant part:
This heading covers fruits, nuts and other edible parts of plants, whether
whole, in pieces or crushed, including mixtures thereof, prepared or pre-
served otherwise than by any of the processes specified in other Chapters or
in the preceding headings of this Chapter.
It includes, inter alia:
(1) Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-
roasted, oil roasted or fat-roasted, whether or not containing or coated
with vegetable oil, salt, flavours, spices or other additives.
...
116
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(9) Fruit, nuts, fruit-peel and other edible parts of plants (other than
vegetables), preserved by sugar and put in syrup (e.g. marrons glacés or
giner), whatever the packing.
Moreover, while the ENs to Chapter 20, HTSUS, mention “salt,” the ref-
erences to “dry-roasted, oil-roasted or fat-roasted” and “preserved by sugar
and put in syrup” indicate the principal processes of preparation or preser-
vation that would change the classification of nuts from Chapter 8, HTSUS,
to Chapter 20, HTSUS. The fact that “salt” is mentioned with reference to the
types of roasting, but is not specifically mentioned as a process of preparation
or preservation, suggests that “salting” is something that may happen with or
as a result of roasting nuts, but whether the nuts are salted, or not, is not
essential to the preparation; what is essential to the preparation is the
roasting. For all of the foregoing reasons, we find that for purposes of GN
12(s)(ii), HTSUS, the term “processing incidental to freezing, packing, or
roasting,” includes the process of “salting.”
This interpretation of GN 12(s)(ii), HTSUS, is further supported by Head-
quarters Ruling Letter (“HQ”) H243328, dated August 19, 2013, which con-
sidered “salting” to be a process incidental to roasting with regard to a
provision from the United States-Korea Free Trade Agreement (“UKFTA”)
that is parallel to GN 12(s)(ii), HTSUS. HQ H243328 affirms the decision in
HQ H240383, dated May 3, 2013, determining the origin of the nuts from
their “fresh” state on the basis that “salting and roasting [...] qualify as
‘processing incidental’ to roasting.”
Accordingly, we find that salting is a process incidental to roasting and does
not render the product originating. Rather, the origin of the product is
determined by the origin of the “fresh” state per GN 12(s)(ii), HTSUS.
Given the foregoing, the roasted and salted macadamia nuts may not be
treated as originating because they do not meet the requirements of GN
12(s)(ii), HTSUS; that is, they were not wholly obtained or produced entirely
in Mexico, Canada, or the United States as fresh nuts. Therefore, the pre-
pared macadamia nuts imported from Canada do not qualify for preferential
tariff treatment under the NAFTA.
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 (or its container)
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 con-
tainer) 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.” United States
v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, CBP
Regulations (19 CFR Part 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:
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[T]he country of manufacture, production, or growth of any article of for-
eign 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]; however, for a good of a NAFTA country, the
NAFTA Marking Rules will determine the country of origin.
Part 102, CBP Regulations (19 CFR Part 102), sets forth the NAFTA Rules
of Origin for country of origin marking purposes. As the macadamia nuts
were grown in Australia, Section 102.11(a)(1) and (2) do not apply. Section
102.11(a)(3) provides:
The country of origin of a good is the country in which ... each foreign
material incorporated in that good undergoes an applicable change in tariff
classification set out in § 102.20 and satisfies any other applicable require-
ments of that section, and all other applicable requirements of these rules are
satisfied.
“Foreign material means a material whose country of origin as determined
under these rules is not the same as the country in which the good is
produced.” 19 CFR § 102.1(e).
Under the provisions of 19 CFR § 102.20, the tariff shift rule for subheading
2008.19, HTSUS, provides as follows:
A change to subheading 2008.19 through 2008.99 from any other chapter,
provided that the change is not the result of mere blanching of nuts.
However, the note from Chapter 20, HTSUS, provides:
Notwithstanding the specific rules of this chapter, fruit, nut and vegetable
preparations of Chapter 20 that have been prepared or preserved merely by
freezing, by packing (including canning) in water, brine or natural juices, or
by roasting, either dry or in oil (including processing incidental to freezing,
packing or roasting), shall be treated as a good of the country in which the
fresh good was produced.
Based on the note from Chapter 20, HTSUS, the country of origin of the
macadamia nuts is not determined by 19 CFR § 102.11(a) (incorporating 19
CFR § 102.20), and the next step in the country of origin marking determi-
nation is provided in 19 CFR § 102.11(b), which states:
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,
where the country of origin cannot be determined under paragraph (a) of this
section:
(1) The country of origin of the good is the country or countries of origin
of the single material that imparts the essential character of the good...
“‘Material’ means a good that is incorporated into another good as a result
of production with respect to that other good, and includes parts, ingredients,
subassemblies, and components.” 19 CFR § 102.1 (l).
“For purposes of identifying the material that imparts the essential char-
acter to a good under §102.11, the only materials that shall be taken into
consideration are those domestic or foreign materials that are classified in a
tariff provision from which a change in tariff classification is not allowed
under the §102.20 specific rule or other requirements applicable to the good.”
19 CFR § 102.18(b)(1).
Pursuant to 19 CFR § 102.11(b) (incorporating 19 CFR § 102.18(b)(1)), we
find that the single material that imparts the essential character of the
finished good is the macadamia nuts. Therefore, the prepared macadamia
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
nuts may not be marked as goods of Canada, but rather must be marked to
indicate that they are products of Australia.
HOLDING:
NY H84143 is modified to reflect that, by application of GN 12(s)(ii),
HTSUS, the prepared macadamia nuts imported from Canada are not eli-
gible for preferential tariff treatment under the NAFTA. In addition, by
application of the note from Chapter 20, HTSUS, 19 CFR § 102.11(a) and (b),
19 CFR § 102.18(b) (1), and 19 CFR § 102.20, the prepared macadamia nuts
may not be marked as goods of Canada, but rather must be marked to
indicate that they are products of Australia. The tariff classification of the
prepared macadamia nuts is unchanged.
EFFECT ON OTHER RULINGS:
NY H84143, dated August 6, 2001, is hereby MODIFIED. In accordance
with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after
publication in the Customs Bulletin.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
119
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT J]
HQ H256785
OT:RR:CTF:VS H256785 AJR
CATEGORY: NAFTA
M
R.STEVE DECASTRO
ALL-WAY S FORWARDING INTERNATIONAL,INC.
701 N
EWARK AVENUE,SUITE 300
E
LIZABETH, NJ 07208
RE: Modification of NY H82352; NAFTA; GN 12, HTSUS - Duty Preference;
Mixed Nuts Roasted and Salted in Canada
D
EAR MR.DECASTRO:
This is in reference to New York Ruling Letter (“NY”) H82352, dated
August 10, 2001, issued to you on behalf of your client, Star Snacks, of Jersey
City, New Jersey. At issue was the tariff classification of mixed nuts and their
eligibility for preferential tariff treatment under the North American Free
Trade Agreement (“NAFTA”). In NY H82352, U.S. Customs and Border Pro-
tection (“CBP”) determined, in relevant part, that various raw nuts of U.S.,
Canadian, Indian, and Brazilian origin imported into Canada, where they
were roasted, salted, and mixed with other nuts, qualified for preferential
tariff treatment under the NAFTA when imported into the United States;
however, the decision failed to consider whether the nuts qualified to be
marked as a product of Canada. It is now our position that the roasted and
salted mixed nuts do not qualify for preferential tariff treatment under the
NAFTA. For the reasons described in this ruling, we hereby modify NY
H82352.
This modification does not affect CBP’s decision in NY H82352 that various
roasted nuts imported into Canada, where they undergo a process similar to
the raw nuts, do not qualify for preferential tariff treatment under the
NAFTA. The tariff classification of the roasted and salted nuts under sub-
heading 2008.19.85 under the Harmonized Tariff Schedule of the United
States (“HTSUS”) when imported from Canada is also unaffected.
FACTS:
NY H82352 stated, in relevant part:
The merchandise is described as 16 ounce, retail pack tins of “Mixed Nuts,”
consisting of 26.4 percent by weight of peanuts and 21.55 percent red skin
peanuts (country of origin, Canada or the U.S.A.), 16.46 percent cashews
(origin, India), 13.21 percent Brazil nuts (origin, Brazil) and 11.97 percent
unbleached almonds, 5.98 percent unbleached filberts and 4.49 percent pe-
cans (origin, all U.S.A.).
In your correspondence you indicate that the country of exportation will be
Canada. The condition of the nuts when they are imported into Canada is
sometimes raw and at other times roasted. The nuts are brought into the
country of exportation both in bags and boxes. When the nuts enter Canada
in a raw condition, they are roasted, salted, and mixed with other ingredients
(salt, oil, and other nuts). When the nuts enter Canada in a roasted condition,
Star Snacks will re-salt, re-oil and pack the product in its final export
container.
CBP found that the non-originating nuts, when imported raw into Canada,
satisfied the changes in tariff classification required under General Note
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(“GN”) 12(t)/20.4, HTSUS, and that, upon compliance with all applicable
laws, regulations, and agreements under the NAFTA, the nut mixture would
be subject to a free tariff rate when imported into the United States.
ISSUE:
Whether the roasted and salted mixed nuts described in NY H82352 quali-
fies for preferential tariff treatment under the NAFTA?
LAW AND ANALYSIS:
Pursuant to GN 12, HTSUS, for an article to be eligible for NAFTA pref-
erence, two requirements must be satisfied. First, the article in question
must be “originating” under the terms of GN 12, HTSUS, and second, the
article must qualify to be marked as a good of a NAFTA country under the
NAFTA Marking Rules contained in 19 CFR § 102.20.
With regard to the first requirement, GN 12(b), HTSUS, provides, in per-
tinent part:
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if –
...
ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivision (r), (s) and (t) of this
note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivision
(r), (s) and (t) where no change in tariff classification is required, and the
goods satisfy all other requirements of this note [.]
Raw nuts are classified under various headings of Chapter 8, HTSUS. In
understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of
the Harmonized Commodity Description and Coding System may be utilized.
The ENs, although not dispositive or legally binding, provide a commentary
on the scope of each heading, and are generally indicative of the proper
interpretation of the Harmonized System at the international level. See T.D.
89–80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to Chapter 8, HTSUS,
explain that nuts prepared according to Chapter 20, HTSUS, are excluded
from Chapter 8, HTSUS. Mixed nut preparations are classified under sub-
heading 2008.19, HTSUS. The ENs to heading 2008, HTSUS, explain that
this heading includes oil-roasted nuts whether or not containing or coated
with salt. In this case, various raw nuts were imported from non-NAFTA
countries into Canada, where they were mixed with other nuts and oil, and
roasted and salted, and thus correctly classified under subheading
2008.19.85, HTSUS.
The applicable rule in subdivision (t) provides for “a change to subheadings
2008.19 through 2008.99 from any other chapter.” See GN 12(t)/20.4, HTSUS.
However, GN 12(s), Exceptions to Change in Tariff Classification Rules,
HTSUS, provides, in relevant part:
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
(ii) Fruit, nut and vegetable preparations of chapter 20 that have been
prepared or preserved merely by freezing, by packing (including canning)
in water, brine or natural juices, or by roasting, either dry or in oil
(including processing incidental to freezing, packing, or roasting), shall be
treated as an originating good only if the fresh good were wholly produced
or obtained entirely in the territory of one or more NAFTA parties.
Accordingly, though the non-originating nuts appear to undergo the requi-
site tariff shift from Chapter 8, HTSUS, to subheading 2008.19.85, HTSUS,
if the above exception applies, then the nuts do qualify for preferential tariff
treatment under the NAFTA.
As provided in relevant part by GN 12(s)(ii), HTSUS, when nut prepara-
tions are prepared “merely” by roasting or processing “incidental” to roasting,
then the origin of the nuts in their “fresh” state determines the origin of the
good. The “fresh” state refers to the state of the nuts before they were roasted
or processed in a manner incidental to roasting. Thus, for such nut prepara-
tions to be originating, the “fresh” nuts used to make the good must be wholly
obtained or produced entirely in the territory of one or more of NAFTA parties
(Mexico, Canada, or the United States). That is, non-originating nuts that,
while in a NAFTA territory, are merely roasted, or processed in a manner
incidental to roasting, will not be treated as originating nuts.
The term “merely” is not specifically defined in GN 12, HTSUS, but per its
dictionary definition means “only (what is referred to) and nothing more.”
Read in the context of GN 12, HTSUS, the term “merely” means that the
processes listed in GN 12(s)(ii), HTSUS, by themselves, are insufficient to
qualify non-originating nuts for preferential tariff treatment under the
NAFTA, despite changing tariff classifications per GN 12(b)(ii), HTSUS, and
GN 12(t)/20.4, HTSUS. Thus, we find that the purpose of GN 12(s)(ii), HT-
SUS, is to ensure that goods undergo sufficient processing in a NAFTA
country, beyond the listed processes, in order to be considered originating for
purposes of GN 12(b)(ii), HTSUS.
The term “incidental” is also not specifically defined in GN 12, HTSUS, but
per its dictionary definition means “occurring or liable to occur in fortuitous
or subordinate conjunction with something else of which it forms no essential
part.” Applying this definition to GN 12(s)(ii), HTSUS, the term “incidental”
indicates a process that may happen with or as a result of roasting, but is
secondary to, or of lesser importance than, the process of roasting.
We find that “salting” is precisely the type of lesser process contemplated
by the note as incidental. Salting often occurs in connection not only with
roasting, as in this case, but also with canning or freezing. It is the roasting,
canning, or freezing processes which are the means by which the products are
principally prepared. By contrast, salting has far less consequences to the
essential character of the product. Moreover, the addition of salt like other
flavors, spices, or other ingredients is a relatively simply process and does not
require a prescribed amount to be added.
Given that roasting by itself would not be sufficient to make a nut an
originating good per GN 12 (s)(ii), HTSUS, it would defeat the purpose of such
note to conclude that “salting” would provide otherwise. Furthermore, the
ENs to Chapter 20, HTSUS, state, in relevant part:
This heading covers fruits, nuts and other edible parts of plants, whether
whole, in pieces or crushed, including mixtures thereof, prepared or pre-
served otherwise than by any of the processes specified in other Chapters or
in the preceding headings of this Chapter.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
It includes, inter alia:
(1) Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-
roasted, oil roasted or fat-roasted, whether or not containing or coated
with vegetable oil, salt, flavours, spices or other additives.
...
(9) Fruit, nuts, fruit-peel and other edible parts of plants (other than
vegetables), preserved by sugar and put in syrup (e.g. marrons glacés or
giner), whatever the packing.
Moreover, while the ENs to Chapter 20, HTSUS, mention “salt,” the ref-
erences to “dry-roasted, oil-roasted or fat-roasted” and “preserved by sugar
and put in syrup” indicate the principal processes of preparation or preser-
vation that would change the classification of nuts from Chapter 8, HTSUS,
to Chapter 20, HTSUS. The fact that “salt” is mentioned with reference to the
types of roasting, but is not specifically mentioned as a process of preparation
or preservation, suggests that “salting” is something that may happen with or
as a result of roasting nuts, but whether the nuts are salted, or not, is not
essential to the preparation; what is essential to the preparation is the
roasting. For all of the foregoing reasons, we find that for purposes of GN
12(s)(ii), HTSUS, the term “processing incidental to freezing, packing, or
roasting,” includes the process of “salting.”
This interpretation of GN 12(s)(ii), HTSUS, is further supported by Head-
quarters Ruling Letter (“HQ”) H243328, dated August 19, 2013, which con-
sidered “salting” to be a process incidental to roasting with regard to a
provision from the United States-Korea Free Trade Agreement (“UKFTA”)
that is parallel to GN 12(s)(ii), HTSUS. HQ H243328 affirms the decision in
HQ H240383, dated May 3, 2013, determining the origin of the nuts from
their “fresh” state on the basis that “salting and roasting [...] qualify as
‘processing incidental’ to roasting.”
Accordingly, we find that salting is a process incidental to roasting and does
not render the product originating. Rather, the origin of the product is
determined by the origin of the “fresh” state per GN 12(s)(ii), HTSUS.
Given the foregoing, the prepared mixed nuts may not be treated as origi-
nating because they do not meet the requirements of GN 12(s)(ii), HTSUS;
that is, they were not wholly obtained or produced entirely in Mexico,
Canada, or the United States as fresh nuts. Therefore, the prepared mixed
nuts imported from Canada do not qualify for preferential tariff treatment
under the NAFTA.
HOLDING:
NY H82352 is modified to reflect that, by application of GN 12(s)(ii),
HTSUS, the prepared nut mixture imported from Canada is not eligible for
preferential tariff treatment under the NAFTA. This modification does not
change CBP’s decision in NY H82352 that various roasted nuts imported into
Canada, where they undergo a process similar to the raw nuts, do not qualify
for preferential tariff treatment under the NAFTA. The tariff classification of
the prepared nut mixture, subheading 2008.19.85, HTSUS, is also un-
changed.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
EFFECT ON OTHER RULINGS:
NY H82352, dated August 10, 2001, is hereby MODIFIED. In accordance
with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after
publication in the Customs Bulletin.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
124
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT K]
HQ H256784
OT:RR:CTF:VS H256784 AJR
CATEGORY: NAFTA
M
S.SHERI G. LAWSON
WILSON INTERNATIONAL,INC.
160 W
ALES AVENUE,SUITE 100
T
ONAWANDA, NY 14150
RE: Modification of NY R02589; NAFTA; GN 12, HTSUS; 19 C.F.R.
§ 102.20 - Country of Origin Marking; Mixed Nuts Roasted and Salted
in Canada
D
EAR MS.LAWSON:
This is in reference to New York Ruling Letter (“NY”) R02589, dated
September 23, 2005, issued to you on behalf of your client, John Vince Foods,
Inc., of Ontario, Canada. At issue was the tariff classification of mixed nuts,
their eligibility for preferential tariff treatment under the North American
Free Trade Agreement (“NAFTA”), and their country of origin marking. In
NY R02589, U.S. Customs and Border Protection (“CBP”) determined, in
relevant part, that raw cashew nuts from various non-NAFTA countries
imported into Canada, where they were roasted, salted, and then mixed with
peanuts of U.S. origin, qualified for preferential tariff treatment under the
NAFTA when imported into the United States. In addition, CBP found that
the mixture of raw, non-originating cashews and raw, in-shell peanuts of
U.S.-origin qualified to be marked as goods of Canada; while raw, non-
originating cashews and raw, shelled peanuts of U.S.-origin qualified to be
marked as goods of the United States. It is now our position that the mixed
nuts do not qualify for preferential tariff treatment under the NAFTA, and do
not qualify to be marked as goods of Canada or the United States. For the
reasons described in this ruling, we hereby modify NY R02589.
The tariff classification of the roasted and salted mixed nuts under sub-
heading 2008.19.85 of the Harmonized Tariff Schedule of the United States
(“HTSUS”), when imported from Canada, is unaffected.
FACTS:
NY R02589 stated, in relevant part:
The product in question, called “Classic Mix,” is said to consist of 50 percent
by weight of roasted and salted cashews and 50 percent of roasted and salted
peanuts. The cashews are imported into Canada as raw, shelled nuts, and are
the product of Brazil, Indonesia or other offshore countries. The peanuts are
of U.S. origin, and are imported into Canada either blanched and shelled
under tariff heading 2008.11, HTS, or as raw, in-shell peanuts (heading
1202.10).
You state that, in Canada, the cashews and peanuts are oil roasted and
salted individually. The roasted nuts are then layered onto a mixing table
and, as the mixing table is emptied, the product is mixed as it drops into a
tote. The mixed product is then packaged into see-through plastic containers
of 500 grams (17.64 ounces), net, which are then packed for export into the
United States.
CBP found that the non-originating cashews satisfied the changes in tariff
classification required under General Note (“GN”) 12(t)/20.4, HTSUS, and
125
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
that, upon compliance with all applicable laws, regulations, and agreements
under the NAFTA, the roasted and salted mixed nuts would be subject to a
free tariff rate when imported into the United States. CBP also found that the
prepared nuts qualified to be marked as goods of Canada under the NAFTA
Marking Rules (19 CFR §§ 102.11(a)(3) and 102.20(d)).
ISSUE:
Whether the roasted and salted mixed nuts described in NY R02589 qualify
for preferential tariff treatment under the NAFTA, and whether they may be
marked as goods of Canada?
LAW AND ANALYSIS:
Pursuant to GN 12, HTSUS, for an article to be eligible for NAFTA pref-
erence, two requirements must be satisfied. First, the article in question
must be “originating” under the terms of GN 12, HTSUS, and second, the
article must qualify to be marked as a good of a NAFTA country under the
NAFTA Marking Rules contained in 19 CFR § 102.20.
With regard to the first requirement, GN 12(b), HTSUS, provides, in per-
tinent part:
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if –
....
ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivision (r), (s) and (t) of this
note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivision
(r), (s) and (t) where no change in tariff classification is required, and the
goods satisfy all other requirements of this note [.]
Raw cashew nuts are classified in subheading 0801.32, HTSUS. In under-
standing the language of the HTSUS, the Explanatory Notes (“ENs”) of the
Harmonized Commodity Description and Coding System may be utilized. The
ENs, although not dispositive or legally binding, provide a commentary on
the scope of each heading, and are generally indicative of the proper inter-
pretation of the Harmonized System at the international level. See T.D.
89–80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to Chapter 8, HTSUS,
explain that nuts prepared according to Chapter 20, HTSUS, are excluded
from Chapter 8, HTSUS. Roasted and salted mixed nuts are classified under
subheading 2008.19, HTSUS. The ENs to heading 2008, HTSUS, explain
that this heading includes oil-roasted nuts whether or not containing or
coated with salt. In this case, raw cashew nuts were imported from non-
NAFTA countries into Canada, where they were roasted, salted, and then
mixed with peanuts of U.S. origin, and thus correctly classified under sub-
heading 2008.19.85, HTSUS.
126
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
The applicable rule in subdivision (t) provides for “a change to subheadings
2008.19 through 2008.99 from any other chapter.” See GN 12(t)/20.4, HTSUS.
However, GN 12(s), Exceptions to Change in Tariff Classification Rules,
HTSUS, provides, in relevant part:
(ii) Fruit, nut and vegetable preparations of chapter 20 that have been
prepared or preserved merely by freezing, by packing (including canning)
in water, brine or natural juices, or by roasting, either dry or in oil
(including processing incidental to freezing, packing, or roasting), shall be
treated as an originating good only if the fresh good were wholly produced
or obtained entirely in the territory of one or more NAFTA parties.
Accordingly, though the non-originating nuts appear to undergo the requi-
site tariff shift from Chapter 8, HTSUS, to subheading 2008.19.85, HTSUS,
if the above exception applies, then the nuts do qualify for preferential tariff
treatment under the NAFTA.
As provided in relevant part by GN 12(s)(ii), HTSUS, when nut prepara-
tions are prepared “merely” by roasting or processing “incidental” to roasting,
then the origin of the nuts in their “fresh” state determines the origin of the
good. The “fresh” state refers to the state of the nuts before they were roasted
or processed in a manner incidental to roasting. Thus, for such nut prepara-
tions to be originating, the “fresh” nuts used to make the good must be wholly
obtained or produced entirely in the territory of one or more of NAFTA parties
(Mexico, Canada, or the United States). That is, non-originating nuts that,
while in a NAFTA territory, are merely roasted, or processed in a manner
incidental to roasting, will not be treated as originating nuts.
The term “merely” is not specifically defined in GN 12, HTSUS, but per its
dictionary definition means “only (what is referred to) and nothing more.”
Read in the context of GN 12, HTSUS, the term “merely” means that the
processes listed in GN 12(s)(ii), HTSUS, by themselves, are insufficient to
qualify non-originating nuts for preferential tariff treatment under the
NAFTA, despite changing tariff classifications per GN 12(b)(ii), HTSUS, and
GN 12(t)/20.4, HTSUS. Thus, we find that the purpose of GN 12(s)(ii), HT-
SUS, is to ensure that goods undergo sufficient processing in a NAFTA
country, beyond the listed processes, in order to be considered originating for
purposes of GN 12(b)(ii), HTSUS.
The term “incidental” is also not specifically defined in GN 12, HTSUS, but
per its dictionary definition means “occurring or liable to occur in fortuitous
or subordinate conjunction with something else of which it forms no essential
part.” Applying this definition to GN 12(s)(ii), HTSUS, the term “incidental”
indicates a process that may happen with or as a result of roasting, but is
secondary to, or of lesser importance than, the process of roasting.
We find that “salting” is precisely the type of lesser process contemplated
by the note as incidental. Salting often occurs in connection not only with
roasting, as in this case, but also with canning or freezing. It is the roasting,
canning, or freezing processes which are the means by which the products are
principally prepared. By contrast, salting has far less consequences to the
essential character of the product. Moreover, the addition of salt like other
flavors, spices, or other ingredients is a relatively simply process and does not
require a prescribed amount to be added.
Given that roasting by itself would not be sufficient to make a nut an
originating good per GN 12 (s)(ii), HTSUS, it would defeat the purpose of such
127
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
note to conclude that “salting” would provide otherwise. Furthermore, the
ENs to Chapter 20, HTSUS, state, in relevant part:
This heading covers fruits, nuts and other edible parts of plants, whether
whole, in pieces or crushed, including mixtures thereof, prepared or pre-
served otherwise than by any of the processes specified in other Chapters or
in the preceding headings of this Chapter.
It includes, inter alia:
(1) Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-
roasted, oil roasted or fat- roasted, whether or not containing or coated
with vegetable oil, salt, flavours, spices or other additives.
...
(9) Fruit, nuts, fruit-peel and other edible parts of plants (other than
vegetables), preserved by sugar and put in syrup (e.g. marrons glacés or
giner), whatever the packing.
Moreover, while the ENs to Chapter 20, HTSUS, mention “salt,” the ref-
erences to “dry-roasted, oil-roasted or fat-roasted” and “preserved by sugar
and put in syrup” indicate the principal processes of preparation or preser-
vation that would change the classification of nuts from Chapter 8, HTSUS,
to Chapter 20, HTSUS. The fact that “salt” is mentioned with reference to the
types of roasting, but is not specifically mentioned as a process of preparation
or preservation, suggests that “salting” is something that may happen with or
as a result of roasting nuts, but whether the nuts are salted, or not, is not
essential to the preparation; what is essential to the preparation is the
roasting. For all of the foregoing reasons, we find that for purposes of GN
12(s)(ii), HTSUS, the term “processing incidental to freezing, packing, or
roasting,” includes the process of “salting.”
This interpretation of GN 12(s)(ii), HTSUS, is further supported by Head-
quarters Ruling Letter (“HQ”) H243328, dated August 19, 2013, which con-
sidered “salting” to be a process incidental to roasting with regard to a
provision from the United States-Korea Free Trade Agreement (“UKFTA”)
that is parallel to GN 12(s)(ii), HTSUS. HQ H243328 affirms the decision in
HQ H240383, dated May 3, 2013, determining the origin of the nuts from
their “fresh” state on the basis that “salting and roasting [...] qualify as
‘processing incidental’ to roasting.”
Accordingly, we find that salting is a process incidental to roasting and does
not render the product originating. Rather, the origin of the product is
determined by the origin of the “fresh” state per GN 12(s)(ii), HTSUS.
Given the foregoing, the roasted and salted mixed nuts may not be treated
as originating because they do not meet the requirements of GN 12(s)(ii),
HTSUS; that is, they were not wholly obtained or produced entirely in
Mexico, Canada, or the United States as fresh nuts. Therefore, the mixed
nuts imported from Canada do not qualify for preferential tariff treatment
under the NAFTA.
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 (or its container)
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 con-
tainer) will permit, in such a manner as to indicate to the ultimate purchaser
128
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
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.” United States
v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, CBP
Regulations (19 CFR Part 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:
[T]he country of manufacture, production, or growth of any article of for-
eign 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]; however, for a good of a NAFTA country, the
NAFTA Marking Rules will determine the country of origin.
Part 102, CBP Regulations (19 CFR Part 102), sets forth the NAFTA Rules
of Origin for country of origin marking purposes. As the cashew nuts were
grown in non-NAFTA countries, Section 102.11(a)(1) and (2) do not apply.
Section 102.11(a)(3) provides:
The country of origin of a good is the country in which ... each foreign
material incorporated in that good undergoes an applicable change in tariff
classification set out in § 102.20 and satisfies any other applicable require-
ments of that section, and all other applicable requirements of these rules are
satisfied.
“‘Foreign material’ means a material whose country of origin as determined
under these rules is not the same as the country in which the good is
produced.” 19 CFR § 102.1(e).
Under the provisions of 19 CFR § 102.20, the tariff shift rule for subheading
2008.19, HTSUS, provides as follows:
A change to subheading 2008.19 through 2008.99 from any other chapter,
provided that the change is not the result of mere blanching of nuts.
However, the note from Chapter 20, HTSUS, provides:
Notwithstanding the specific rules of this chapter, fruit, nut and vegetable
preparations of Chapter 20 that have been prepared or preserved merely by
freezing, by packing (including canning) in water, brine or natural juices, or
by roasting, either dry or in oil (including processing incidental to freezing,
packing or roasting), shall be treated as a good of the country in which the
fresh good was produced.
Based on the note from Chapter 20, HTSUS, the country of origin of the
mixed nuts is not determined by 19 CFR § 102.11(a) (incorporating 19 CFR §
102.20), and the next step in the country of origin marking determination is
provided in 19 CFR § 102.11(b), followed by 19 CFR § 102.11(c).
Section 102.11(b) states:
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,
where the country of origin cannot be determined under paragraph (a) of this
section:
(1) The country of origin of the good is the country or countries of origin
of the single material that imparts the essential character of the good...
129
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Section 102.11(c) states:
Where the country of origin cannot be determined under paragraph (a) or
(b) of this section and the good is specifically described in the Harmonized
System as a set or mixture, or classified as a set, mixture or composite good
pursuant to General Rule of Interpretation 3, the country of origin of the good
is the country of countries of origin of all materials that merit equal consid-
eration for determining the essential character of the good.
“‘Material’ means a good that is incorporated into another good as a result
of production with respect to that other good, and includes parts, ingredients,
subassemblies, and components.” 19 CFR § 102.1 (l).
“For purposes of identifying the material that imparts the essential char-
acter to a good under §102.11, the only materials that shall be taken into
consideration are those domestic or foreign materials that are classified in a
tariff provision from which a change in tariff classification is not allowed
under the §102.20 specific rule or other requirements applicable to the good.”
19 CFR § 102.18(b)(1).
In this case, the mixed nuts are classified under 2008.19.85, HTSUS, which
describes the product as a mixture. Pursuant to 19 CFR § 102.11(c) (incor-
porating 19 CFR § 102.18(b)(1)), we find that the cashew nuts and peanuts
both merit equal consideration for determining the essential character of the
finished good. Therefore, the prepared nut mixture may not be marked as a
product of Canada, but rather must be marked to indicate that it is a product
of Brazil, Indonesia, the United States, and the other offshore countries
where the cashew nuts and peanuts originate. However, to the extent it is
marked as a “Product of the United States,” that is within the purview of the
Federal Trade Commission.
HOLDING:
NY R02589 is modified to reflect that, by application of GN 12(s)(ii), HT-
SUS, the prepared nut mixture imported from Canada is not eligible for
preferential tariff treatment under the NAFTA. In addition, by application of
the note from Chapter 20, HTSUS, 19 CFR § 102.11(a) - (c), 19 CFR §
102.18(b)(1), and 19 CFR § 102.20, the prepared nut mixture may not be
marked as a good of Canada, but rather must be marked to indicate that it is
a product of Brazil, Indonesia, the United States, and the other offshore
countries where the cashew nuts and peanuts originate. The tariff classifi-
cation of the prepared nuts is unchanged.
EFFECT ON OTHER RULINGS:
NY R02589, dated September 23, 2005, is hereby MODIFIED. In accor-
dance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after
publication in the Customs Bulletin.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
130
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT L]
HQ H256781
OT:RR:CTF:VS H256781 AJR
CATEGORY: NAFTA
M
R.KEVIN J. SULLIVAN
BAKER &MCKENZIE,LLP
815 C
ONNECTICUT AVENUE,NW
W
ASHINGTON, DC 20006–4078
RE: Modification of NY N228118; NAFTA; GN 12, HTSUS; 19 C.F.R. §
102.20 – Country of Origin Marking; Cashew Nuts Roasted and Salted
in Canada
D
EAR MR.SULLIVAN:
This is in reference to New York Ruling Letter (“NY”) N228118, dated
August 8, 2012, issued to you on behalf of your client, Harvest Manor Farms,
LLC, of Texas. At issue was the tariff classification of cashew nuts, their
eligibility for preferential tariff treatment under the North American Free
Trade Agreement (“NAFTA”), and their country of origin marking. In NY
N228118, U.S. Customs and Border Protection (“CBP”) determined, in rel-
evant part, that raw cashew nuts from various non-NAFTA countries im-
ported into Canada, where they were heated, polished, cleaned, roasted (with
or without oil) and salted, qualified for preferential tariff treatment under the
NAFTA when imported into the United States. In addition, CBP found that
the prepared nuts qualified to be marked as goods of Canada. It is now our
position that the nuts do not qualify for preferential tariff treatment under
the NAFTA, and do not qualify to be marked as goods of Canada. For the
reasons described in this ruling, we hereby modify NY N228118.
The tariff classification of the roasted and salted nuts under subheading
2008.19.1040 of the Harmonized Tariff Schedule of the United States (“HT-
SUS”), when imported from Canada, is unaffected.
FACTS:
NY N228118 stated, in relevant part:
[R]aw, shelled cashews will initially be imported into Canada from various
suppliers from non-NAFTA countries. In Canada, the nuts will first be in-
spected and subjected to a heat process intended to bring them to an ambient
temperature to control breakage during subsequent processing. After heat-
ing, the cashews will be re-inspected and then polished and cleaned by being
passed through a high-efficiency aspirator. The cashews will then be placed
into either an oil or dry roaster. After roasting, the nuts will undergo a salting
operation. After salting, the cashews will be inspected again and then packed,
either whole or halved, in retail containers of various types and sizes. They
will then be imported into the United States. You state that the ingredients
of the finished, imported merchandise will be cashews, sea salt and peanut oil
(from the roaster).
CBP found that the non-originating nuts satisfied the changes in tariff
classification required under General Note (“GN”) 12(t)/20.4, HTSUS, and
that, upon compliance with all applicable laws, regulations, and agreements
under the NAFTA, the nuts would be subject to a free tariff rate when
imported into the United States. In reaching its decision, CBP stated that
“GN 12(s)(ii), which sets forth an exception for products that merely undergo
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
roasting or other specified processing, is not triggered here because the nuts
at issue additionally undergo a salting process after roasting.” CBP also
found that the prepared nuts qualified to be marked as goods of Canada
under the NAFTA Marking Rules (19 CFR §§ 102.11(a) (3) and 102.20(d)).
ISSUE:
Whether the roasted and salted cashew nuts described in NY N228118
qualify for preferential tariff treatment under the NAFTA, and whether they
may be marked as goods of Canada?
LAW AND ANALYSIS:
Pursuant to GN 12, HTSUS, for an article to be eligible for NAFTA pref-
erence, two requirements must be satisfied. First, the article in question
must be “originating” under the terms of GN 12, HTSUS, and second, the
article must qualify to be marked as a good of a NAFTA country under the
NAFTA Marking Rules contained in 19 CFR § 102.20.
With regard to the first requirement, GN 12(b), HTSUS, provides, in per-
tinent part:
For the purposes of this note, goods imported into the customs territory of
the United States are eligible for the tariff treatment and quantitative limi-
tations set forth in the tariff schedule as “goods originating in the territory of
a NAFTA party” only if –
....
ii) they have been transformed in the territory of Canada, Mexico and/or
the United States so that—
(A) except as provided in subdivision (f) of this note, each of the non-
originating materials used in the production of such goods undergoes a
change in tariff classification described in subdivision (r), (s) and (t) of this
note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivision
(r), (s) and (t) where no change in tariff classification is required, and the
goods satisfy all other requirements of this note [.]
Raw cashew nuts are classified in subheading 0801.32, HTSUS. In under-
standing the language of the HTSUS, the Explanatory Notes (“ENs”) of the
Harmonized Commodity Description and Coding System may be utilized. The
ENs, although not dispositive or legally binding, provide a commentary on
the scope of each heading, and are generally indicative of the proper inter-
pretation of the Harmonized System at the international level. See T.D.
89–80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to Chapter 8, HTSUS,
explain that nuts prepared according to Chapter 20, HTSUS, are excluded
from Chapter 8, HTSUS. Roasted and salted cashew nuts are classified under
subheading 2008.19, HTSUS. The ENs to heading 2008, HTSUS, explain
that this heading includes oil-roasted nuts whether or not containing or
coated with salt. In this case, raw cashew nuts were imported from non-
NAFTA countries into Canada, where they were heated, polished, cleaned,
roasted, and salted, and thus correctly classified under subheading
2008.19.1040, HTSUS.
The applicable rule in subdivision (t) provides for “a change to subheadings
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
2008.19 through 2008.99 from any other chapter.” See GN 12(t)/20.4, HTSUS.
However, GN 12(s), Exceptions to Change in Tariff Classification Rules,
HTSUS, provides, in relevant part:
(ii) Fruit, nut and vegetable preparations of chapter 20 that have been
prepared or preserved merely by freezing, by packing (including canning)
in water, brine or natural juices, or by roasting, either dry or in oil
(including processing incidental to freezing, packing, or roasting), shall be
treated as an originating good only if the fresh good were wholly produced
or obtained entirely in the territory of one or more NAFTA parties.
Accordingly, though the non-originating nuts appear to undergo the requi-
site tariff shift from Chapter 8, HTSUS, to subheading 2008.19.1040, HT-
SUS, if the above exception applies, then the nuts do qualify for preferential
tariff treatment under the NAFTA.
As provided in relevant part by GN 12(s)(ii), HTSUS, when nut prepara-
tions are prepared “merely” by roasting or processing “incidental” to roasting,
then the origin of the nuts in their “fresh” state determines the origin of the
good. The “fresh” state refers to the state of the nuts before they were roasted
or processed in a manner incidental to roasting. Thus, for such nut prepara-
tions to be originating, the “fresh” nuts used to make the good must be wholly
obtained or produced entirely in the territory of one or more of NAFTA parties
(Mexico, Canada, or the United States). That is, non-originating nuts that,
while in a NAFTA territory, are merely roasted, or processed in a manner
incidental to roasting, will not be treated as originating nuts.
The term “merely” is not specifically defined in GN 12, HTSUS, but per its
dictionary definition means “only (what is referred to) and nothing more.”
1
Read in the context of GN 12, HTSUS, the term “merely” means that the
processes listed in GN 12(s)(ii), HTSUS, by themselves, are insufficient to
qualify non-originating nuts for preferential tariff treatment under the
NAFTA, despite changing tariff classifications per GN 12(b)(ii), HTSUS, and
GN 12 (t)/20.4, HTSUS. Thus, we find that the purpose of GN 12(s)(ii),
HTSUS, is to ensure that goods undergo sufficient processing in a NAFTA
country, beyond the listed processes, in order to be considered originating for
purposes of GN 12(b)(ii), HTSUS.
The term “incidental” is also not specifically defined in GN 12, HTSUS, but
per its dictionary definition means “occurring or liable to occur in fortuitous
or subordinate conjunction with something else of which it forms no essential
part.”
2
Applying this definition to GN 12(s)(ii), HTSUS, the term “incidental”
indicates a process that may happen with or as a result of roasting, but is
secondary to, or of lesser importance than, the process of roasting.
We find that “salting” is precisely the type of lesser process contemplated
by the note as incidental. Salting often occurs in connection not only with
roasting, as in this case, but also with canning or freezing. It is the roasting,
canning, or freezing processes which are the means by which the products are
principally prepared. By contrast, salting has far less consequences to the
essential character of the product. Moreover, the addition of salt like other
1
“Merely” defined by Oxford English Dictionary at http://www.oed.com/view/Entry/
116740?rskey=jcbGqY&result=2#eid.
2
“Incidental” defined by the Oxford English Dictionary at http://www.oed.com/view/Entry/
93467?redirectedFrom=incidental#eid.
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flavors, spices, or other ingredients is a relatively simply process and does not
require a prescribed amount to be added.
Given that roasting by itself would not be sufficient to make a nut an
originating good per GN 12 (s)(ii), HTSUS, it would defeat the purpose of such
note to conclude that “salting” would provide otherwise. Furthermore, the
ENs to Chapter 20, HTSUS, state, in relevant part:
This heading covers fruits, nuts and other edible parts of plants, whether
whole, in pieces or crushed, including mixtures thereof, prepared or pre-
served otherwise than by any of the processes specified in other Chapters or
in the preceding headings of this Chapter.
It includes, inter alia:
(1) Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-
roasted, oil roasted or fat-roasted, whether or not containing or coated
with vegetable oil, salt, flavours, spices or other additives.
...
(9) Fruit, nuts, fruit-peel and other edible parts of plants (other than
vegetables), preserved by sugar and put in syrup (e.g. marrons glacés or
giner), whatever the packing.
Moreover, while the ENs to Chapter 20, HTSUS, mention “salt,” the ref-
erences to “dry-roasted, oil-roasted or fat-roasted” and “preserved by sugar
and put in syrup” indicate the principal processes of preparation or preser-
vation that would change the classification of nuts from Chapter 8, HTSUS,
to Chapter 20, HTSUS. The fact that “salt” is mentioned with reference to the
types of roasting, but is not specifically mentioned as a process of preparation
or preservation, suggests that “salting” is something that may happen with or
as a result of roasting nuts, but whether the nuts are salted, or not, is not
essential to the preparation; what is essential to the preparation is the
roasting. For all of the foregoing reasons, we find that for purposes of GN
12(s)(ii), HTSUS, the term “processing incidental to freezing, packing, or
roasting,” includes the process of “salting.”
This interpretation of GN 12(s)(ii), HTSUS, is further supported by Head-
quarters Ruling Letter (“HQ”) H243328, dated August 19, 2013, which con-
sidered “salting” to be a process incidental to roasting with regard to a
provision from the United States-Korea Free Trade Agreement (“UKFTA”)
that is parallel to GN 12(s)(ii), HTSUS. HQ H243328 affirms the decision in
HQ H240383, dated May 3, 2013, determining the origin of the nuts from
their “fresh” state on the basis that “salting and roasting [...] qualify as
‘processing incidental’ to roasting.”
3
Accordingly, we find that salting is a process incidental to roasting and does
not render the product originating. Rather, the origin of the product is
determined by the origin of the “fresh” state per GN 12(s)(ii), HTSUS.
Given the foregoing, the roasted and salted cashew nuts may not be treated
as originating because they do not meet the requirements of GN 12(s)(ii),
HTSUS; that is, they were not wholly obtained or produced entirely in
Mexico, Canada, or the United States as fresh nuts. Therefore, the prepared
cashew nuts imported from Canada do not qualify for preferential tariff
treatment under the NAFTA.
3
We find that the absence of “merely” from the UKFTA provision does not affect the
interpretation of “incidental” in HQ H243328 and HQ H240383.
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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 (or its container)
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 con-
tainer) 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.” United States
v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, CBP
Regulations (19 CFR Part 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:
[T]he country of manufacture, production, or growth of any article of for-
eign 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]; however, for a good of a NAFTA country, the
NAFTA Marking Rules will determine the country of origin.
Part 102, CBP Regulations (19 CFR Part 102), sets forth the NAFTA Rules
of Origin for country of origin marking purposes. As the cashew nuts were
grown in non-NAFTA countries, Section 102.11(a)(1) and (2) do not apply.
Section 102.11(a)(3) provides:
The country of origin of a good is the country in which ... each foreign
material incorporated in that good undergoes an applicable change in tariff
classification set out in § 102.20 and satisfies any other applicable require-
ments of that section, and all other applicable requirements of these rules are
satisfied.
“‘Foreign material’ means a material whose country of origin as determined
under these rules is not the same as the country in which the good is
produced.” 19 CFR § 102.1(e).
Under the provisions of 19 CFR § 102.20, the tariff shift rule for subheading
2008.19, HTSUS, provides as follows:
A change to subheading 2008.19 through 2008.99 from any other chapter,
provided that the change is not the result of mere blanching of nuts.
However, the note from Chapter 20, HTSUS, provides:
Notwithstanding the specific rules of this chapter, fruit, nut and vegetable
preparations of Chapter 20 that have been prepared or preserved merely by
freezing, by packing (including canning) in water, brine or natural juices, or
by roasting, either dry or in oil (including processing incidental to freezing,
packing or roasting), shall be treated as a good of the country in which the
fresh good was produced.
Based on the note from Chapter 20, HTSUS, the country of origin of the
cashew nuts is not determined by 19 CFR § 102.11(a) (incorporating 19 CFR
§ 102.20), and the next step in the country of origin marking determination
is provided in 19 CFR § 102.11(b), which states:
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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,
where the country of origin cannot be determined under paragraph (a) of this
section:
(1) The country of origin of the good is the country or countries of origin
of the single material that imparts the essential character of the good...
“‘Material’ means a good that is incorporated into another good as a result
of production with respect to that other good, and includes parts, ingredients,
subassemblies, and components.” 19 CFR § 102.1 (l).
“For purposes of identifying the material that imparts the essential char-
acter to a good under §102.11, the only materials that shall be taken into
consideration are those domestic or foreign materials that are classified in a
tariff provision from which a change in tariff classification is not allowed
under the §102.20 specific rule or other requirements applicable to the good.”
19 CFR § 102.18(b)(1).
Pursuant to 19 CFR § 102.11(b) (incorporating 19 CFR § 102.18(b)(1)), we
find that the single material that imparts the essential character of the
finished good is the cashew nuts. Therefore, the prepared nuts may not be
marked as goods of Canada, but rather must be marked to indicate that they
are products of the non-NAFTA countries from where they originate.
HOLDING:
NY N228118 is modified to reflect that, by application of GN 12(s)(ii),
HTSUS, the roasted and salted cashew nuts imported from Canada are not
eligible for preferential tariff treatment under the NAFTA. In addition, by
application of the note from Chapter 20, HTSUS, 19 CFR § 102.11(a) and (b),
19 CFR § 102.18 (b)(1), and 19 CFR § 102.20, the prepared cashew nuts may
not be marked as goods of Canada, but rather must be marked to indicate
that they are products of the non-NAFTA countries from where they origi-
nate. The tariff classification of the prepared cashew nuts is unchanged.
EFFECT ON OTHER RULINGS:
NY N228118, dated August 8, 2012, is hereby MODIFIED. In accordance
with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after
publication in the Customs Bulletin.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
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GENERAL NOTICE
19 CFR PART 177
MODIFICATION OF ONE RULING LETTER AND
REVOCATION OF TREATMENT RELATING TO THE
ELIGIBILITY OF PHEROMONE LURES FOR
PREFERENTIAL TREATMENT UNDER DR-CAFTA
AGENCY: U.S. Customs and Border Protection (“CBP”), Depart-
ment of Homeland Security.
ACTION: Modification of one ruling letter and revocation of treat-
ment relating to the eligibility of pheromone lures for preferential
treatment under DR-CAFTA.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
1625 (c)), as amended by section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-
ested parties that CBP is modifying one ruling letter concerning the
eligibility of pheromone lures for preference under DR-CAFTA. Simi-
larly, CBP is revoking any treatment previously accorded by CBP to
substantially identical transactions. Notice of the proposed action
was published in the Customs Bulletin, Vol. 49, No. 5, on February 4,
2015. CBP received one comment in response to this notice.
EFFECTIVE DATE: This action is effective for merchandise
entered or withdrawn from warehouse for consumption on or after
September 28, 2015.
FOR FURTHER INFORMATION CONTACT: Tamar Anolic,
Tariff Classification and Marking Branch: (202) 325–0036.
SUPPLEMENTARY INFORMATION:
Background
On December 8, 1993, Title VI (Customs Modernization), of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These concepts
are premised on the idea that in order to maximize voluntary com-
pliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. §1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and provide any other information necessary
to enable CBP to properly assess duties, collect accurate statistics and
determine whether any other applicable legal requirement is met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625
(c)(1)), as amended by section 623 of Title VI (Customs Moderniza-
tion) of the North American Free Trade Agreement Implementation
Act (Pub. L. 103–182, 107 Stat. 2057), notice proposing to modify NY
N233747, dated October 24, 2012, was published on February 4, 2015,
in Volume 49, Number 5, of the Customs Bulletin. CBP received one
comment in response to this notice.
Although in this notice CBP is specifically referring to NY N233747,
this notice covers any rulings on this merchandise which may exist
but have not been specifically identified. CBP has undertaken rea-
sonable efforts to search existing data bases for rulings in addition to
the one identified. No further rulings have been found. This notice
will cover any rulings on this merchandise that may exist but have
not been specifically identified. Any party who has received an inter-
pretive ruling or decision (i.e., ruling letter, internal advice memo-
randum or decision or protest review decision) on the merchandise
subject to this notice, should have advised CBP during the notice
period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19 U.S.C.
1625(c)(2)), as amended by section 623 of Title VI, CBP is revoking
any treatment previously accorded by CBP to substantially identical
transactions. Any person involved in substantially identical transac-
tions should have advised CBP during the notice period. An import-
er’s failure to have advised CBP of substantially identical transac-
tions or of a specific ruling not identified in this notice, may raise
issues of reasonable care on the part of the importer or his agents for
importations of merchandise subsequent to this notice.
Pursuant to 19 U.S.C. 1625(c)(1), CBP is modifying NY N233747 in
order to reflect the proper reasoning behind the DR-CAFTA prefer-
ence granted to this merchandise, pursuant to the analysis set forth
in Headquarters Ruling Letter (“HQ”) H237563, set forth as an at-
tachment to this document. Additionally, pursuant to 19 U.S.C. §
1625(c)(2), CBP is revoking any treatment previously accorded by
CBP to substantially identical transactions.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
In accordance with 19 U.S.C. §1625(c), this action will become
effective 60 days after publication in the Customs Bulletin.
Dated: June 30, 2015
M
ONIKA R. BRENNER
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
HQ H237563
June 30, 2015
CLA-2 OT:RR:CTF:TCM H237563 TNA
CATEGORY: Classification
J
ENNIFER R. DIAZ,ESQ.
B
ECKER &POLIAKOFF
121 ALHAMBRA PLAZA,10TH FLOOR
CORAL GABLES, FL 33134
RE: Reconsideration of NY N233747; Classification and DR-CAFTA Prefer-
ence of Various Pest Lures from Costa Rica
DEAR MS.DIAZ:
This letter is in reference to your request, dated January 7, 2013, of
reconsideration of NY N233747, issued to you on October 24, 2012, on behalf
of Marketing Arm International, Inc., concerning the tariff classification of
pheromone lures that incorporate ingredients from the United States, Costa
Rica, and the Netherlands and whether they are eligible for preferential
treatment under the Dominican Republic- Central America-United States
Free Trade Agreement (DR-CAFTA). In that ruling, U.S. Customs and Border
Protection (“CBP”) classified the subject pheromone lures under subheading
3808.91.50, Harmonized Tariff Schedule of the United States (“HTSUS”), as
“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: Insecticides:
Other: Other.” CBP also found that the merchandise did not qualify for
preference under DR-CAFTA. We have reviewed NY N233747 and found it to
be partially incorrect. For the reasons set forth below, we hereby modify NY
N233747. We note that this modification does not address the classification of
the subject pheromone lures and is limited to their eligibility for preference
under DR-CAFTA.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to modify NY N233747
was published on February 4, 2015, in Vol. 49, No. 5, of the Customs Bulletin.
CBP received one comment in response to this notice, which is addressed in
the ruling.
FACTS:
The subject merchandise consists of four types of pheromone dispensers,
used as traps for certain types of insects, specifically beet army worm, cotton
pink bollworm, fall army worm, and the insect armyworm. These products
are enclosed inside rubber septa and packed in an impermeable aluminum
pack. They consist of various chemical compounds that function as attrac-
tants for the particular target pest.
The first product, Spodoptera sunia pheromone lure, is a mating disruption
pheromone for the armyworm. It consists of two active ingredients: (Z,E)-
9,12-tetradecadienyl acetate (CAS-30507–70–1) and (Z)-9-Tetradecenyl ac-
etate (CAS-16725–53–4), as well as a third ingredient, n-hexane. The product
is enclosed inside a rubber septum measuring approximately 1.5 cm in length
and packed in an impermeable aluminum pack. It is intended for use as an
attractant for Spodoptera sunia (armyworm). You state that the supplier of
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
the rubber septa and the active ingredients are all U.S. companies, and that
the supplier of the n-hexane is a Costa Rican company.
The second product, Spodoptera exigua pheromone lure, is a mating dis-
ruption pheromone for the beet armyworm. It consists of two active ingredi-
ents: (Z)-9, E-12-tetradecadienyl acetate (CAS-31654–77–0) and Z-9-
tetradecenol (CAS-35153–15–2). It also contains potassium hydroxide,
methanol and n-hexane. The product is enclosed inside a rubber septum
measuring approximately 1.5 cm in length and packed in an impermeable
aluminum pack. It is intended for use as an attractant for Spodoptera exigua
(beet armyworm). You state that the supplier of the rubber septa, the active
ingredients, the potassium hydroxide and the methanol are U.S. companies,
and the supplier of the n-hexane is a Costa Rican company.
The third product, Spodoptera frugiperda pheromone lure, is a mating
disruption pheromone for the fall armyworm. It consists of three active
ingredients: Z-7-Dodecenyl acetate (CAS-14959–86–5), (Z)-11- Hexadecenyl
acetate (CAS-34010–21–4) and Z-9-Tetradecenyl acetate (CAS-16725–53–4).
It also contains n-hexane. The product is blister packed inside a plastic sleeve
measuring approximately 4 cm in length and packed in an impermeable
aluminum pack. It is intended for use as an attractant for Spodoptera fru-
giperda (fall armyworm). You state that the suppliers of the active ingredi-
ents are U.S. companies, and the supplier of the n-hexane is a Costa Rican
company.
The last product is Gossyplure Pheromone Dispenser, a mating disruption
pheromone for the pink bollworm. It consists of two active ingredients: Z-7,
E-11-Hexadecadienyl Acetate (CAS 50933–33–0); and Z-7, Z-11-
Hexadecadienyl Acetate (CAS 50933–33–0). It also contains n-hexane. It is
packaged in rubber septa and is intended for use as an attractant for the pink
bollworm. It is stated that the supplier of the rubber septa and the active
ingredients are U.S. companies; however, one invoice indicated that origin of
the n-hexane is a Costa Rican company. According to the supplier, this
product’s active ingredients are purchased in the Netherlands.
Pheromones are natural substances that are produced by special glands in
the abdomen of insects and it attracts the opposite gender of the same
species. Insects produce pheromones for various purposes such as attracting
a mate, marking foraging routes, and signaling alarm. Pheromone traps such
as the subject merchandise slowly releases synthetic attractants that helps
detect a single species of insect.
In NY N233747, CBP determined that the subject pheromone lures were
not eligible for preferential treatment under DR-CAFTA. This conclusion was
based on the fact that the FTA had not been updated to reflect the most recent
technical updates that had been made to the HTSUS. As a result, NY
N233747 reasoned that subheading 3808.91, the subheading in which the
subject merchandise was classified, was not named in the applicable DR-
CAFTA’s tariff shift rule, and the merchandise was therefore ineligible for
preference.
ISSUE:
Are the subject pheromone lures eligible for preferential treatment under
DR-CAFTA?
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
LAW AND ANALYSIS:
General Note 29, HTSUS, incorporates Article 401 of the DR-CAFTA into
the HTSUS. General Note 29 (b) provides, in pertinent part, that:
For the purposes of this note, subject to the provisions of subdivisions (c),
(d), (m) and (n) thereof, a good imported into the customs territory of the
United States is eligible for treatment as an originating good under the terms
of this note if—
(i) they are goods wholly obtained or produced entirely in the territory of
one of the parties to the Agreement; or
(ii) the good was produced entirely in the territory of one or more of the
parties to the Agreement, and—
(A) each of the nonoriginating materials used in the production of the
good undergoes an applicable change in tariff classification specified
in subdivision (n) of this note; or
(B) the good otherwise satisfies any applicable regional value content
or other requirements specified in subdivision (n) of this note;
and the good satisfies all other applicable requirements of this note;
or
(iii) the good was produced entirely in the territory of one or more of the
parties to the Agreement exclusively from originating materials.
In addition, 19 C.F.R. §10.616 states, in pertinent part, the following:
(a) Verification. A claim for preferential tariff treatment made under §
10.583(b) or § 10.591 of this subpart, including any statements or other
information submitted to CBP in support of the claim, will be subject to
such verification as the port director deems necessary. In the event that
the port director is provided with insufficient information to verify or
substantiate the claim, or the exporter or producer fails to consent to a
verification visit, the port director may deny the claim for preferential
treatment.
As an initial matter in our analysis, the following is noted on page 2 of the
General Notes (GN) of the HTSUS (2012) (Rev. 1):
[COMPILER’S NOTE: Two sets of changes to the Harmonized System
have caused rules of origin for some free trade agreements to be incon-
sistent with the tariff schedule chapters. First, the rules of origin provi-
sions for various United States free trade agreements have NOT been
updated since major changes to the HTS were proclaimed effective on
February 3, 2007, and will therefore contain tariff numbers that do not
exist in the chapters of the HTS; these outdated rules are included in
terms of HS 2002. However, the rules for the North American Free Trade
Agreement, the United States-Australia Free Trade Agreement, the
United States-Singapore Free Trade Agreement, the United States-Chile
Free Trade Agreement, the United States-Bahrain Free Trade Agree-
ment, and the United States-Korea Free Trade Agreement have been
updated, and the pertinent general notes do reflect proclaimed rectifica-
tions. See Presidential Proclamation 8097, which modified the HTS to
reflect World Customs Organization changes to the Harmonized Com-
modity Description and Coding System and was effective as of Feb. 3,
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
2007; proclaimed modifications appear on the Web site of the United
States International Trade Commission, www.usitc.gov.
Second, for the second set of HS changes, the rules of origin for the United
States-Chile Free Trade Agreement have been updated, as shown in the
change record for this edition, to reflect the modifications to the HTS
made by Presidential Proclamation 8771 of December 29, 2011 and effec-
tive as of February 3, 2012. This proclamation modified the HTS to reflect
the WCO changes to the Harmonized System recommended to be effective
in 2012. In addition, the rules of origin for the United States-Korea Free
Trade Agreement were updated effective on and after January 1, 2014,
pursuant to Presidential Proclamation xxxx. No other rules of origin
provisions have been updated since the 2012 Harmonized System update,
and these provisions may reflect HTS numbers as in effect in 2002 or
2007.
Contact officials of U.S. Customs and Border Protection in order to ascer-
tain whether affected goods qualify for FTA treatment. A ruling on an
individual shipment may be necessary.]
Accordingly, because the DR-CAFTA rules of origin have not been updated
to reflect the 2007 or the 2012 changes to the Harmonized System, the
pre-2007 classifications for the goods at issue must be used in order to
ascertain the eligibility under the DR-CAFTA.
Therefore, under the terms of the Compiler’s Note, while the DR-CAFTA
rules have not yet been updated to reflect the technical updates to the
HTSUS, and the updated subheading is not listed in the appropriate tariff
shift rule, this alone is not a reason to deny preferential tariff treatment
under the FTA, as determined in NY N233747. The change in subheading in
which the subject merchandise is classified is not the result of a substantive
change, but merely a change in the tariff number of the subheading because
of the technical updates to the HTSUS. We now find that a denial of prefer-
ence on this basis was unwarranted, and we re-examine whether the subject
merchandise is entitled to duty-free treatment under the DR-CAFTA.
The relevant DR-CAFTA tariff shift rule states:
A change to subheadings 3808.10 through 3808.90 from any other sub-
heading, provided that 50 percent by weight of the active ingredient or
ingredients is originating.
It is not in dispute that the subject merchandise was classified in subhead-
ing 3808.10.50 under the pre-2007 HTSUS. Thus, contrary to the reasoning
of NY N233747, the subject merchandise will meet this tariff shift rule if
sufficient documentation is provided to show that 50 percent by weight of the
active ingredient or ingredients is originating. If the merchandise was eli-
gible prior to the 2007 technical updates, the technical updates themselves
are not a bar to preference.
Your claim for DR-CAFTA preference is based on these goods being wholly
obtained or produced in the U.S. and Costa Rica. When this request for
reconsideration was first filed, no certificates of origin for the materials were
submitted. However, CBP has allowed DR-CAFTA preference claims if the
information needed to base a claim for preference is verified in documenta-
tion submitted by the importer, such as purchase orders, commercial in-
voices, proof of payment, shipping documents, etc., in addition to certificates
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
of origin. See, e.g., HQ H196456, dated May 16, 2012; HQ H192596, dated
February 14, 2012; and HQ H198036, dated February 27, 2012.
In the present case, the first product, Spodoptera sunia, contains three
ingredients: (Z,E)-9,12- tetradecadienyl acetate, (Z)-9-Tetradecenyl acetate,
and n-hexane, enclosed inside a rubber septum. The first two ingredients are
the active ingredients. The submitted invoices include an invoice from the
U.S. supplier for the Z-9-Tetradecenyl acetate. They also include invoices
from both the Costa Rican supplier and the U.S. supplier for the (Z,E)-9,12-
tetradecadienyl acetate. These invoices show sales of the materials between
Costa Rican and U.S. companies, but these materials could have been pro-
duced anywhere and there is no indication on the invoices that the materials
were produced in the U.S. and/or Costa Rica. Thus, these invoices do not
definitively establish that any of the ingredients were manufactured or pro-
duced in Costa Rica or the U.S. As counsel for the importer, you submitted a
comment after the proposed ruling was published in the Customs Bulletin.
You submit the importer’s certification that the Spodoptera sunia was made
in the United States, and a certificate of origin showing that the Z-9-
Tetradecenyl acetate was made in the United States.
The second product, Spodoptera exigua, consists of five ingredients: (Z)- 9,
E-12-tetradecadienyl acetate, Z-9-tetradecenol, potassium hydroxide, metha-
nol and n-hexane, all enclosed inside a rubber septum. The first two are the
active ingredients. Among the submitted invoices are invoices from both the
Costa Rican supplier and the U.S. supplier for the (Z)-9, E-12- tetradecadi-
enyl acetate and potassium hydroxide. An invoice was also submitted from
the Costa Rican supplier for the methanol. These invoices show sales of the
materials between Costa Rican and U.S. companies, but these materials
could have been produced anywhere and there is no indication on the invoices
that the materials were produced in the U.S. and/or Costa Rica. Thus, these
invoices do not definitively establish that any of the ingredients were manu-
factured or produced in Costa Rica or the U.S. As counsel for the importer,
you submitted a comment after the proposed ruling was published in the
Customs Bulletin. You submit the importer’s certification that the Spodop-
tera exigua was made in the United States, and a certificate of origin showing
that Z-9-Tetradecenyl acetate was made in the United States. We note that
Z-9-Tetradecenyl acetate is not among the Spodoptera exigua’s ingredients.
The third product, Spodoptera frugiperda, consists of four ingredients:
Z-7-Dodecenyl acetate, (Z)-11-Hexadecenyl acetate, Z-9-Tetradecenyl acetate,
and n-hexane. The first three are the active ingredients. The submitted
invoices show that the Z-7-Dodecenyl acetate, Z-9-Tetradecenyl acetate and
(Z)- 11-Hexadecenyl acetate were supplied by U.S. suppliers, and that the
rubber septum was supplied by the Costa Rican supplier. However, one
invoice, from a U.S. supplier for the (Z)-11-Hexadecenyl acetate and sold to
the Costa Rican supplier, indicates that the country of origin of this ingredi-
ent is Japan. As counsel for the importer, you submitted a comment after the
proposed ruling was published in the Customs Bulletin. You submit the
importer’s certification that the Spodoptera frugiperda was made in the
United States, and a certificate of origin showing that the Z-9-Tetradecenyl
acetate was made in the United States.
The last product at issue, Gossyplure Pheromone Dispenser contains three
ingredients: Z-7, E-11- Hexadecadienyl Acetate, Z-7, Z-11-Hexadecadienyl
Acetate, and n-hexane. The first two are the active ingredients. The submit-
ted invoices show that the country of origin of the Z-7, E-11-Hexadecadienyl
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Acetate and Z-7, Z-11-Hexadecadienyl Acetate is the Netherlands, and you
acknowledge this origin. As a result, the Gossyplure Pheromone Dispenser
cannot receive preferential treatment under DR-CAFTA.
We also note that the tariff shift rule for heading 3808, HTSUS, where the
subject goods are classified, requires that at least 50 percent by weight of the
active ingredient or ingredients is originating. Once more, we note that the
active ingredient in the Gossyplure Pheromone Dispenser is wholly obtained
from the Netherlands and is therefore non-originating. The invoices submit-
ted for the other three products at issue show only the sale of ingredients
used to make the pheromones lures. Most of these invoices do not substan-
tiate the origin of the ingredients; the only exception is the invoice for the
subject Spodoptera frugiperda pheromone lure that states that its country of
origin is Japan. These invoices also do not specify the percentage by weight
of any originating ingredients. Accordingly, should the port choose to verify
the DR-CAFTA claims for the lures for which Certificates of Origin were
submitted, and provided that the importer can substantiate information
regarding the weight, the goods may receive preferential tariff treatment
under DR-CAFTA, if the Port Director is satisfied with the validity of these
documents.
HOLDING:
The fact that the rules of origin for DR-CAFTA have not been updated is not
a bar to the eligibility of the subject merchandise for preference.
Based on the information presented, however, the Gossyplure Pheromone
Dispenser is not eligible for preferential treatment under DR-CAFTA. The
eligibility of the remaining products, their eligibility depends on the deter-
mination of the Port Director based on certificates of origin presented at the
time of entry as specified in 19 C.F.R. §10.616.
EFFECT ON OTHER RULINGS:
NY N233747, dated October 24, 2012, is MODIFIED with respect to the
reason for denial of DR-CAFTA preference for the subject merchandise.
Sincerely,
M
ONIKA R. BRENNER
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
REVOCATION OF RULING LETTERS AND REVOCATION
OF TREATMENT RELATING TO THE TARIFF
CLASSIFICATION OF AUTOMOBILE SEAT COVERS
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of revocation of ten ruling letters and revocation of
treatment relating to the classification of automobile seat covers.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
1625 (c)), as amended by section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub. L. 103-182, 107 Stat. 2057), this notice advises inter-
ested parties that CBP is revoking New York Ruling Letters (NY)
815572, dated October 13, 1995; NY 816444, dated November 14,
1995; NY 817886, dated January 25, 1996; NY A88713, dated October
30, 1996; NY C85587, dated April 2, 1998; NY D87669, dated Febru-
ary 19, 1999; NY E83615, dated July 20, 1999; NY I88761, dated
December 10, 2002; NY K80213, dated November 12, 2003; and NY
N015530, dated August 28, 2007, concerning the tariff classification
of automobile seat covers under the Harmonized Tariff Schedule of
the United States (HTSUS). Notice proposing to revoke 815572, NY
816444, NY 817886, NY A88713, NY C85587, NY D87669, NY
E83615, NY I88761, NY K80213, and NY N015530 was published on
May 20, 2015, in Volume 49, Number 20, of the Customs Bulletin.No
comments were received in response to this Notice.
EFFECTIVE DATE: This action is effective for merchandise
entered or withdrawn from warehouse for consumption on or after
September 28, 2015.
FOR FURTHER INFORMATION CONTACT: Claudia Garver,
Tariff Classification and Marking Branch: (202) 325–0024
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993 Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.
Tile VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These con-
cepts are premised on the idea that in order to maximize voluntary
compliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. §1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and to provide any other information neces-
sary to enable CBP to properly assess duties, collect accurate statis-
tics and determine whether any other applicable legal requirement is
met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
§1625(c)(1)), as amended by section 623 of Title VI, notice proposing
to revoke 815572, NY 816444, NY 817886, NY A88713, NY C85587,
NY D87669, NY E83615, NY I88761, NY K80213, and NY N015530
was published on May 20, 2015, in Volume 49, Number 20, of the
Customs Bulletin.
As stated in the proposed notice, this action will cover any rulings
on the subject merchandise which may exist but have not been spe-
cifically identified. CBP has undertaken reasonable efforts to search
existing databases for rulings in addition to the ruling identified
above. Any party who has received an interpretive ruling or decision
(i.e., ruling letter, internal advice memorandum or decision or protest
review decision) on the merchandise subject to this notice should
have advised CBP during the comment period.
Similarly, pursuant to section 625 (c)(2), Tariff Act of 1930, as
amended (19 U.S.C. 1625 (c)(2)), CBP is revoking any treatment
previously accorded by CBP to substantially identical transactions.
Any person involved in substantially identical transactions should
have advised CBP during this notice period. An importer’s failure to
advise CBP of substantially identical transactions or of a specific
ruling not identified in this notice, may raise issues of reasonable care
on the part of the importer or its agents for importations of merchan-
dise subsequent to the effective date of this final decision.
In NY 815572, NY 816444, and NY 817886, NY A88713, NY
C85587, NY D87669, NY E83615, NY I88761, and NY K80213, CBP
classified various automobile seat covers in heading 6304, HTSUS, as
other furnishing articles. In NY N015530, CBP classified an automo-
bile seat cover in heading 6307, HTSUS, as an “other” made up article
of textile.
Pursuant to 19 U.S.C. § 1625(c)(1), CBP is revoking NY 815572, NY
816444, and NY 817886, NY A88713, NY C85587, NY D87669, NY
E83615, NY I88761, and NY K80213, and NY N015530, as well as
any other ruling not specifically identified, to reflect the tariff classi-
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
fication of the subject merchandise according to the analysis con-
tained in Headquarters Ruling Letter (HQ) H249319, which is at-
tached to this document. Additionally, pursuant to 19 U.S.C. §
1625(c)(2), CBP is revoking any treatment previously accorded by
CBP to substantially identical transactions.
Dated: July 8, 2015
Sincerely,
J
ACINTO JUAREZ
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachments
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
HQ H249319
July 8, 2015
CLA-2 RR:CTF:TCM H249319 CKG
CATEGORY: Classification
TARIFF NO: 8708.99.81
S
ANDRA TOVAR
CST, INC.
500 L
ANIER AVE.W,SUITE 901
F
AYETTEVILLE, GA 30214
RE: Revocation of New York Ruling Letters (NY) 815572, NY 816444, NY
817886, NY A88713, NY C85587, NY D87669, NY E83615, NY I88761,
NY K80213, and NY N015530; classification of automobile seat covers
D
EAR MS.TOVAR:
This is in reference to New York Ruling Letters (NY) 815572, dated October
13, 1995; (NY) 816444, dated November 14, 1995; NY 817886, dated January
25, 1996; NY A88713, dated October 30, 1996; NY C85587, dated April 2,
1998; NY D87669, dated February 19, 1999; NY E83615, dated July 20, 1999;
NY I88761, dated December 10, 2002; NY K80213, dated November 12, 2003;
and NY N015530, dated August 28, 2007. In NY 815572, NY 816444, and NY
817886, NY A88713, NY C85587, NY D87669, NY E83615, NY I88761, and
NY K80213, CBP classified various automobile seat covers in heading 6304,
HTSUS, as other furnishing articles. In NY N015530, CBP classified an
automobile seat cover in heading 6307, HTSUS, as an “other” made up article
of textile. For the reasons set forth below, we have determined that the
classification of these seat covers in headings 6304 and 6307, HTSUS, was
incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke 815572, NY
816444, NY 817886, NY A88713, NY C85587, NY D87669, NY E83615, NY
I88761, NY K80213, and NY N015530 was published on May 20, 2015, in
Volume 49, Number 20, of the Customs Bulletin. No comments were received
in response to this Notice.
FACTS:
The subject merchandise consists of various universal fit, after-market
automotive seat covers, designed to fit over most bucket seats and bench
seats of automotives, trucks, sport utility vehicles and vans. The seat covers
are knit or woven and made from synthetic or cotton fabric. The merchandise
is marketed for fashion, fun, style, protection, upgrade and comfort.
ISSUE:
Whether the subject merchandise is classifiable as other furnishing articles
under heading 6304, HTSUS, other made up textile articles under heading
6307, HTSUS, or as accessories of motor vehicles under heading 8708, HT-
SUS.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (“GRIs”). GRI 1 provides that articles are to be
classified by the terms of the headings and relative Section and Chapter
Notes. For an article to be classified in a particular heading, the heading
must describe the article, and not be excluded therefrom by any legal note. In
the event that goods cannot be classified solely on the basis of GRI 1, and if
the headings and legal notes do not otherwise require, the remaining GRIs
may then be applied. GRI 3 provides, in pertinent part, that:
When by application of rule 2(b) or for any other reason, goods are, prima
facie, classifiable under two or more headings, classification shall be
effected as follows:
(a) The heading which provides the most specific description shall be
preferred to headings providing a more specific description. How-
ever, when two or more headings each refer to part only of the
materials or substances contained in mixed or composite goods or to
part only of the items in a set put up for retail sale, those headings
are to be regarded as equally specific in relation to those goods, even
if one of them gives a more complete or precise description of the
goods.
The HTSUS provisions under consideration are as follows:
6304: Other furnishing articles, excluding those of heading 9404:
Other:
6304.91.00: Knitted or crocheted...
***
6307: Other made up articles, including dress patterns:
6307.90: Other:
Other:
6307.90.98: Other. . .
***
8708: Parts and accessories of the motor vehicles of headings 8701 to
8705:
Other parts and accessories:
8708.99: Other:
8708.99.80: Other.
***
Note 2 to Section XVII provides as follows:
2. The expressions “parts” and “parts and accessories” do not apply to
the following articles, whether or not they are identifiable as for the
goods of this section:
(a) Joints, washers or the like of any material (classified ac-
cording to their constituent material or in heading 8484) or
other articles of vulcanized rubber other than hard rubber
(heading 4016);
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(b) Parts of general use, as defined in note 2 to section XV, of
base metal (section XV) or similar goods of plastics (chap-
ter 39);
(c) Articles of chapter 82 (tools);
(d) Articles of heading 8306;
(e) Machines or apparatus of headings 8401 to 8479, or parts
thereof; articles of heading 8481 or 8482 or, provided they
constitute integral parts of engines or motors, articles of
heading 8483;
(f) Electrical machinery or equipment (chapter 85);
(g) Articles of chapter 90;
(h) Articles of chapter 91;
(ij) Arms (chapter 93);
(k) Lamps or lighting fittings of heading 9405; or
(l) Brushes of a kind used as parts of vehicles (heading 9603).
Note 3 to Section XVII provides:
3. References in chapters 86 to 88 to “parts” or “accessories” do not ap-
ply to parts or accessories which are not suitable for use solely or
principally with the articles of those chapters. A part or accessory
which answers to a description in two or more of the headings of
those chapters is to be classified under that heading which corre-
sponds to the principal use of that part or accessory.
***
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System
at the international level. While neither legally binding nor dispositive, the
ENs provide a commentary on the scope of each heading of the HTSUS and
are generally indicative of the proper interpretation of the headings. It is
CBP’s practice to follow, whenever possible, the terms of the ENs when
interpreting the HTSUS. See T.D. 89 -80, 54 Fed. Reg. 35127, 35128 (August
23, 1989).
Part III of the General EN’s to Section XVII, HTSUS, provides, in pertinent
part:
. . . these headings apply only to those parts or accessories which
comply with all three of the following conditions:
(a) They must not be excluded by the terms of Note 2 to this
Section (see paragraph (A) below).
and
(b) They must be suitable for use solely or principally with the
articles of Chapters 86 to 88 (see paragraph (B) below).
and
(c) They must not be more specifically included elsewhere in the
Nomenclature (see paragraph (C) below).
(C) Parts and accessories covered more specifically elsewhere in
the Nomenclature.
Parts and accessories, even if identifiable as for the articles of this Sec-
tion, are excluded if they are covered more specifically by another head-
ing elsewhere in the Nomenclature...
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
*****
EN 87.08 provides:
This heading covers parts and accessories of the motor vehicles of head-
ings 87.01 to 87.05, provided the parts and accessories fulfil both the
following conditions :
(i) They must be identifiable as being suitable for use solely or princi-
pally with the above-mentioned vehicles;
and
(ii) They must not be excluded by the provisions of the Notes to Section
XVII (see the corresponding General Explanatory Note).
Parts and accessories of this heading include:
(B) Parts of bodies and associated accessories, for example, floor boards,
sides, front or rear panels, luggage compartments, etc.; doors and parts
thereof; bonnets (hoods); framed windows, windows equipped with heat-
ing resistors and electrical connectors, window frames; running-boards;
wings (fenders), mudguards; dashboards; radiator cowlings; number-
plate brackets; bumpers and over-riders; steering column brackets; exte-
rior luggage racks; visors; non-electric heating and defrosting appliances
which use the heat produced by the engine of the vehicle; safety seat belts
designed to be permanently fixed into motor vehicles for the protection of
persons; floor mats (other than of textile material or unhardened vulca-
nised rubber), etc. Assemblies (including unit construction chassis-bodies)
not yet having the character of incomplete bodies, e.g., not yet fitted with
doors, wings (fenders), bonnets (hoods) and rear compartment covers, etc.,
are classified in this heading and not in heading 87.07.
*****
Heading 6304, HTSUS, covers, in pertinent part, other furnishing articles.
The ENs state that the heading includes “furnishing articles of textile ma-
terials ... for use in the home, public buildings, theatres, churches, etc., and
similar articles used in ships, railway carriages, aircraft, trailer caravans,
motor cars, etc.” These seat covers are “ejusdem generis” or “of the same kind”
of articles as the exemplars, such as cushion covers and loose covers for
furniture, listed in the EN. However, heading 6304, HTSUS, is a general
heading or basket provision, as evidenced by the word “other.” See The Item
Company v U.S., 98 F. 3d 1294, 1296 (CAFC 1996). Classification of imported
merchandise in a basket provision is only appropriate if there is no tariff
category that covers the merchandise more specifically. See EM Industries
v.U.S. , F. Supp. 1473, 1480 (1998) (“’Basket’ or residual provisions of HTSUS
headings...areintended as a broad catch-all to encompass the classification
of articles for which there is no more specifically applicable subheading.”).
Heading 6307, HTSUS, covering other made up textile articles, is a similar
basket provision. The EN to heading 6307, HTSUS, notes that the heading
covers made up articles of any textile material which are not included more
specifically in other headings of Section XI or elsewhere in the Nomenclature.
These include, inter alia, loose covers for motor-cars and garment bags. As
with heading 6304, HTSUS, classification in heading 6307, HTSUS, is pre-
cluded if the merchandise is covered more specifically in another tariff pro-
vision.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Heading 8708 provides for parts and accessories of motor vehicles of head-
ings 8701 to 8705. “Accessory” is not defined in the HTSUS. This office has
stated that the term “accessory” is generally understood to mean an article
which is not necessary to enable the goods with which they are intended to
function. They are of secondary importance, but must, however, contribute to
the effectiveness of the principal article (e.g., facilitate the use or handling of
the particular article, widen the range of its uses, or improve its operation).
See Headquarters Ruling Letter (HQ) 958710, dated April 8, 1996; HQ
950166, dated November 8, 1991. We also employ the common and commer-
cial meanings of the term “accessory”, as the courts did in Rollerblade v.
United States, wherein the Court of International Trade derived from various
dictionaries that an accessory must relate directly to the thing accessorized.
See Rollerblade , Inc. v. United States, 116 F.Supp. 2d 1247 (CIT 2000), aff’d,
282 F.3d 1349 (Fed. Cir. 2002) (holding that inline roller skating protective
gear is not an accessory because the protective gear does not directly act on
or contact the roller skates in any way) (referred to herein as Rollerblade);
See also HQ 966216 , dated May 27, 2003. The instant seat covers act directly
on seats of motor vehicles and contribute to their effectiveness by adding to
the style of the interior of the motor vehicle, protecting the seats from wear
and tear, etc. They are identifiable for use solely or principally with the motor
vehicles of headings 8701 to 8705, HTSUS, because they are designed and
principally used to fit bucket seats and bench seats of motor vehicles. They
are also sold in automotive departments and stores and marketed primarily
as automotive accessories. See e.g., http://www.amazon.com/
Seat-Covers-Accessories-Interior-Automotive/b?ie=UTF8&node=15736751;
http://www.walmart.com/browse/auto-tires/car-seat-covers/
91083_1074769_1072095; http://www.amazon.com/FH-FB102112-
Classic-Cloth-Covers-Black/dp/B001W9OP86/ref=sr_1_8? ie=UTF8&qid=
1433947624&sr=8–8&keywords=car+seat+cover; http://www.amazon.com/
Prime-Design-15pc-Monogram-Covers/dp/B00Q3CMPM0/ref=sr_1_17?ie=
UTF8&qid=1433947733&sr=8–17- spons&keywords=car+seat+cover. Thus,
they are accessories to the motor vehicle.
EN 87.08 and the General ENs to Section XVII state that parts and
accessories of the motor vehicles of headings 8701 to 8705 should be identi-
fiable as being suitable for use solely or principally with motor vehicles, must
not be more specifically included elsewhere in the Nomenclature, and must
not be excluded by Note 2 to Section XVI. The instant seat covers satisfy the
requirements of EN 87.08 and the General ENs to Section XVII. They are not
excluded by Section XVII, Note 2. They are used solely or principally with the
motor vehicles of headings 8701 to 8705, HTSUS.
However, as indicated above, the instant merchandise may also be de-
scribed as other furnishing articles of heading 6304, HTSUS, or as other
made up textile articles of heading 6307, HTSUS. The instant goods are
therefore prima facie classifiable under three different headings. GRI 3(a)
provides that for goods which are prima facie classifiable under two or more
headings, the heading which provides the most specific description shall be
preferred to headings providing a more specific description.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
Furthermore, Additional U.S. Rule of Interpretation 1(c), HTSUS, states
that “a provision for parts of an article covers products solely or principally
used as a part of such articles but a provision for “parts” or “parts and
accessories” shall not prevail over a specific provision for such part or acces-
sory.” However, headings 6304, HTSUS, and 6307, HTSUS, are general
headings, or basket provisions. Classification of imported merchandise in a
basket provision is only appropriate if there is no tariff category that covers
the merchandise more specifically. As such, headings 6304, HTSUS, and
6307, HTSUS do not constitute a specific provision for the purposes of Addi-
tional U.S. Rule of Interpretation 1(c). See HQ 960950, dated January 16,
1998 (“It is an accepted rule of classification that a basket provision is not
specific for tariff purposes. Subheading 4205.00.80, HTSUS, is not a specific
provision because it is a basket provision. For this reason, it does not prevail
over subheading 8708.99.80, HTSUS.”). See also HQ 965401, dated April 22,
2002; HQ W968461, dated February 22, 2010; and HQ 957811, dated July 19,
1995. As we have established that automobile accessories fit directly on
automobile seats and are principally used with motor vehicles, they are more
narrowly defined as automobile accessories than as other furnishing articles
or as other made up articles of heading 6307, HTSUS. Heading 8708, HTSUS,
therefore prevails over headings 6304, HTSUS and 6307, HTSUS. The mer-
chandise is accordingly classified in heading 8708, HTSUS.
This conclusion is consistent with prior CBP rulings classifying other
after-market automotive seat covers and similar articles as accessories under
heading 8708, HTSUS. See, e.g., HQ 965401, dated April 22, 2002; HQ
965189, dated April 22, 2002; NY E82884, dated June 10, 1999; NY F87411,
dated June 2, 2000; NY G82562, dated October 12, 2000; NY G88267, dated
March 19, 2001; NY L81220, dated December 15, 2004; NY L82024, dated
January 8, 2005; and NY M84672, dated July 27, 2006. CBP has also clas-
sified automotive steering wheel covers under heading 8708, HTSUS. See,
e.g., NY 807787, dated March 17, 1995, and NY 863737, dated May 30, 1991,
as well as other items for use with motor vehicles, such as a trash container
designed to be strapped to a car seat, in HQ 950525, dated February 7, 1992,
and a contoured car cover in HQ 089423, dated September 24, 1991. The
instant merchandise is accordingly classified in heading 8708, HTSUS.
HOLDING:
By application of GRIs 3(a) and 6, the instant universal fit after-market
automotive seat covers are classified in subheading 8708.99.81, HTSUS,
which provides for “Parts and accessories of the motor vehicles of 8701 to
8705: other parts and accessories: other: other: other: other: other.” The 2015
column one, general rate of duty is 2.5% 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 online at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY 815572, NY 816444, NY 817886, NY A88713, NY C85587, NY D87669,
NY E83615, NY I88761, NY K80213, and NY N015530 are hereby revoked.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60
days after its publication in the Customs Bulletin.
Sincerely,
J
ACINTO JUAREZ
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
◆
PROPOSED REVOCATION OF ONE RULING LETTER AND
PROPOSED REVOCATION OF TREATMENT RELATING TO
THE CLASSIFICATION OF A TRIATHLON SHORT
AGENCY: Bureau of Customs and Border Protection (CBP); Depart-
ment of Homeland Security.
ACTION: Notice of proposed revocation of one ruling letter and
proposed revocation of treatment relating to the classification of a
triathlon short.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
1625(c)), as amended by section 623 of Title VI (Customs Moderniza-
tion) of the North American Free Trade Agreement Implementation
Act (Pub. L. 103-182, 107 Stat. 2057), this notice advises interested
parties that CBP proposes to revoke one ruling concerning the clas-
sification of a triathlon short under the Harmonized Tariff Schedule
of the United States (HTSUS). Similarly, CBP intends to revoke any
treatment previously accorded by CBP to substantially identical mer-
chandise. Comments are invited on the correctness of the proposed
actions.
DATES: Comments must be received on or before August 28, 2015.
ADDRESSES: Written comments are to be addressed to the
Bureau of Customs and Border Protection, Office of International
Trade, Regulations & Rulings, Attention: Trade and Commercial
Regulations Branch, 90 K Street, 10th Floor, NE, Washington, D.C.
20229–1177. Submitted comments may be inspected at the offices of
Customs and Border Protection, 90 K Street, 10th Floor, NE,
Washington, D.C. during regular business hours. Arrangements to
inspect submitted comments should be made in advance by calling
Mr. Joseph Clark at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT: Ann Segura,
Tariff Classification and Marking Branch: (202) 325–0031.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI, (Customs Modernization), of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter ‘‘Title VI’’), became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
‘‘informed compliance’’ and ‘‘shared responsibility.’’ These con-
cepts are premised on the idea that in order to maximize voluntary
compliance with customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. § 1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and to provide any other information neces-
sary to enable CBP to properly assess duties, collect accurate statis-
tics and determine whether any other applicable legal requirement is
met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs Modern-
ization) of the North American Free Trade Agreement Implementa-
tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-
ested parties that CBP proposes to revoke one ruling pertaining to the
classification of a triathlon short. Although in this notice, CBP is
specifically referring to New York Ruling (NY) N007456, dated March
6, 2007 (Attachment “A”), this notice covers any rulings on this
merchandise which may exist but have not been specifically identi-
fied. CBP has undertaken reasonable efforts to search existing data-
bases for rulings in addition to the one identified. No further rulings
have been found. This notice will cover any rulings on this merchan-
dise that may exist but have not been specifically identified. Any
party who has received an interpretive ruling or decision (i.e., a ruling
letter, internal advice memorandum or decision or protest review
decision) on the merchandise subject to this notice should advise CBP
during this notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19 U.S.C.
1625(c)(2)), as amended by section 623 of Title VI, CBP proposes to
revoke any treatment previously accorded by CBP to substantially
identical transactions. Any person involved in substantially identical
transactions should advise CBP during this notice period. An import-
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
er’s failure to advise CBP of substantially identical transactions or of
a specific ruling not identified in this notice, may raise issues of
reasonable care on the part of the importer or his agents for impor-
tations of merchandise subsequent to the effective date of the final
decision on this notice.
In NY N007456, dated March 6, 2007, CBP classified a woman’s
triathlon racing short in subheading 6104.63.2006, Harmonized Tar-
iff Schedule of the United States Annotated (HTSUSA), which pro-
vides for “Women’s or girls’ suits, ensembles, suit-type jackets, blaz-
ers, dresses, skirts, divided skirts, trousers, bib and brace overalls,
breeches and shorts (other than swimwear), knitted or crocheted:
Trousers, bib and brace overalls, breeches and shorts: Of synthetic
fibers: Other: Other, Trousers and breeches: Women’s: Containing 5
percent or more by weight of elastomeric yarn or rubber thread”.
Pursuant to 19 U.S.C. 1625(c)(1), CBP proposes to revoke NY
N007456, and any other ruling not specifically identified, pursuant to
the analysis set forth in Proposed Headquarters Ruling Letter
H039658 (Attachment “B”). Additionally, pursuant to 19 U.S.C.
1625(c)(2), CBP proposes to revoke any treatment previously ac-
corded by CBP to substantially identical transactions. Before taking
this action, we will give consideration to any written comments
timely received.
Dated: July 10, 2015
Sincerely,
J
ACINTO JUAREZ
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachments
157
CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT A]
N007456
CLA-2–61:RR:NC:WA:361
CATEGORY: CLASSIFICATION
TARIFF NO.: 6104.63.2006
M
S.REBEKKA MOEN
DASH AMERICA,INC.
D/B/A P
EARL IZUMI USA, INC.
620 C
OMPTON STREET
BROOMFIELD,COLORADO 80020
RE: The tariff classification of a woman’s triathlon racing short
D
EAR MS.MOEN:
In your letter dated February 21, 2007 you requested a classification
ruling.
Style # 1557 (style name Micro Race Short) is described as a woman’s
triathlon racing short. The garment is a ladies’ pull-on knit short. The main
body is 90 percent nylon 10 percent spandex and the side panels are 87
percent polyester 13 percent spandex. The short features a full elasticized
waistband with a drawstring, hemmed leg openings and a lightly padded
crotch.
The submitted short is made in the U.S. However, the country of manu-
facture for the prospective importation has not yet been decided.
We are returning your sample.
You have recommended classification for the short under 6114.30.3070, as
other garments due to certain specific features. The terms of heading 6104
are not limited, thus they include all forms of short. (see HQ 089405) While
special articles of apparel used for certain sports are properly classified in
heading 6114, this is a limited exception, as indicated in HQ 960833: The
exemplars given in the EN, such as fencing clothing, jockeys’ silks and ballet
clothing, are generally worn only while engaging in that activity. The gar-
ment submitted is not so specialized that it is unsuitable for wear for other
activities. The submitted short does not meet this exception.
The applicable subheading for the shorts covered by style 1557 will be
6104.63.2006, Harmonized Tariff Schedule of the United States (HTSUS),
which provides for Women’s shorts (other than swimwear): Knitted or cro-
cheted: Of synthetic fibers: other: other: shorts: women’s. The duty rate will
be 28.2% 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 World Wide Web at http://www.usitc.gov/tata/hts/.
Style 1557 falls within textile category 648. With the exception of certain
products of China, quota/visa requirements are no longer applicable for
merchandise, which is the product of World Trade Organization (WTO) mem-
ber countries. The textile category number above applies to merchandise
produced in non-WTO member-countries. Quota and visa requirements are
the result of international agreements that are subject to frequent renego-
tiations and changes. To obtain the most current information on quota and
visa requirements applicable to this merchandise, we suggest you check,
close to the time of shipment, the “Textile Status Report for Absolute Quotas”
which is available on our web site at www.cbp.gov. For current information
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
regarding possible textile safeguard actions on goods from China and related
issues, we refer you to the web site of the Office of Textiles and Apparel of the
Department of Commerce at otexa.ita.doc.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, contact National
Import Specialist Angela DeGaetano at 646–733–3052.
Sincerely,
R
OBERT B. SWIERUPSKI
Director
National Commodity Specialist Division
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT B]
HQ H039658
CLA-2 OT:RR:CTF:TCM H039658 AS
CATEGORY: Classification
TARIFF NO.: 6114.30.3070
M
S.JUDITH L. HAGGIN
1100 S.W. SIXTH AVE.
S
UITE 1212
P
ORTLAND, OR 97204
RE: Revocation of NY N007456; Tariff Classification of Triathlon Shorts
D
EAR MS.HAGGIN:
This is in response to your letter to the National Commodity Specialist
Division (NCSD), dated February 19, 2008, filed on behalf of your client, Dash
America, Inc., requesting the reconsideration of New York Ruling Letter (NY)
N007456, dated March 6, 2007, which classified a woman’s triathlon racing
short style #1557 in subheading 6104.63.2006, Harmonized Tariff Schedule of
the United States Annotated (HTSUSA), which provides for “Women’s or
girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided
skirts, trousers, bib and brace overalls, breeches and shorts (other than
swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches
and shorts: Of synthetic fibers: Other: Other, Trousers and breeches: Wom-
en’s: Containing 5 percent or more by weight of elastomeric yarn or rubber
thread”. The NCSD has forwarded your request to us for a direct reply.
Your request for reconsideration also includes a request for a ruling on a
similar women’s triathlon racing short style #0429. You explain that style
#0429 is an updated version of style #1557 of the same name, “Women’s Micro
Race Shorts”. This responds to your request for reconsideration. Samples of
style #1557 and style #0429 have been forwarded by the NCSD to this office
for examination. Both samples will be returned.
We have reviewed NY N007456 and found it to be incorrect. For the reasons
set forth below, we hereby revoke NY N007456.
FACTS:
In NY N007456, the merchandise was described as follows:
Style #1557 (style name Micro Race Short) is described as a woman’s
triathlon racing short. The garment is a ladies’ pull-on knit short. The
main body is 90 percent nylon 10 percent spandex and the side panels are
87 percent polyester 13 percent spandex. The short features a full elas-
ticized waistband with a drawstring, hemmed leg openings and a lightly
padded crotch.
Additionally, from our examination of Style #1557, it has a 100 percent
polyester multi-layer pad permanently sewn into the crotch/seat area of the
shorts as part of the garment. The pad insert is visible when the shorts are
worn, and the effects of the pad are clearly visible (it creates an unsightly
bulge). You also refer to the pad insert as the “chamois insert”. You state that
the pad serves as a cushion and provides extra comfort while participating in
the triathlon.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI). GRI 1 provides that the classification of goods
shall be determined according to the terms of the headings of the tariff
schedule and any relative Section or Chapter Notes. In the event that the
goods cannot be classified solely on the basis of GRI 1, and if the heading and
legal notes do not otherwise require, the remaining GRIs may then be ap-
plied.
The HTSUS provisions under consideration are as follows:
6104 Women’s or girls’ suits, ensembles, suit-type jackets, blazers,
dresses, skirts, divided skirts, trousers, bib and brace overalls,
breeches and shorts (other than swimwear), knitted or crocheted:
Trousers, bib and brace overalls, breeches and shorts:
6104.63 Of Synthetic fibers:
Other:
6104.63.20 Other
Trousers and breeches:
Women’s:
6104.63.2006 Containing 5 percent or more by
weight of elastomeric yarn or rub-
ber thread
6114 Other garments, knitted or crocheted:
6114.30 Of man-made fibers:
6114.30.30 Other
Other:
6114.30.3070 Women’s or girls’
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 nor dispositive, the ENs
provide a commentary on the scope of each heading of the HTSUS and are
generally indicative of the proper interpretation of these headings. See T.D.
89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 6114, HTSUS, state, in relevant part:
This heading covers knitted or crocheted garments which are not included
more specifically in the preceding headings of this Chapter. The heading
includes, inter alia:
***
(5) Special articles of apparel, whether or not incorporating incidentally
protective components such as pads or padding in the elbow, knee or groin
areas, used for certain sports or for dancing or gymnastics (e.g., fencing
clothing, jockeys’ silks, ballet skirts, leotards). However protective equip-
ment for sports or games (e.e., fencing masks and breast plates, ice hockey
pants, etc.) are excluded (heading 95.06).
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
You have asserted that the subject merchandise should be classified in
heading 6114, HTSUS, as “other” garments due to certain specific features
said to be designed specifically for wear during all three triathlon events,
swimming, bicycling, and running.
The terms of heading 6104, HTSUS, are not limited (other than swim-
wear), thus they include all forms of shorts. See HQ 089405, dated March 19,
1992. However, while special articles of apparel used for certain sports are
properly classified in heading 6114, this is a limited exception. The Explana-
tory Notes for heading 6114, HTSUS, state that: “The heading includes, inter
alia: (5) Special articles of apparel used for certain sports or for dancing or
gymnastics (e.g., fencing clothing, jockey silks, ballet skirts, leotards).” See
EN 61.14(5). In HQ 960833, dated October 5, 1998, CBP in particular noted:
“The exemplars given in the EN, such as fencing clothing, jockeys’ silks and
ballet clothing, are generally worn only while engaging in that activity.” CBP
has consistently stated that for sports clothing to be classified in heading
6114, HTSUS, it must be limited to use in a particular sport, be designed for
use in a particular sport, and be worn only while participating in the sport
and not ordinarily worn at any other time. CBP has also considered the
manner in which the garment is marketed and sold. See Headquarters Ruling
Letters (HQ) 086973, dated April 30, 1990; 950846, dated April 8, 1992;
957469, dated November 7, 1995; and 960833, dated October 5, 1998.
The subject garment is specifically designed for the triathlon events that
include swimming, bicycling and running. The instant garment includes a
fully elasticized waist through which a drawstring is threaded, a feature
found in swim trunks. It also includes a padded crotch and seat area, which
is a feature found in cycle shorts. These features, along with the condition of
the padding, demonstrate that the garment meets the needs of all three
events, without unnecessarily impeding any one triathlon event. We agree
that the chamois insert’s purpose is functional (i.e., to prevent chafing, to
provide cushioning, and to absorb sweat), and that the design of the shorts is
such that it renders them impractical for use as fashion shorts of heading
6104, HTSUS. Additionally, the chamois insert has been designed to be
clearly visible on the outside of the garment, creating an unsightly and
unseemly bulge such that the item would not be worn for casual wear. In
addition, we note that the sample of Style #0429 is labeled for triathlon
racing highlighting the “Quick drying UltraSensor Triathlon chamois”. The
www.pearlizumi.com website also markets the item as a woman’s triathlon
short.
In view of the foregoing, CBP finds that subject merchandise is classified in
heading 6114, HTSUS.
This decision is consistent with NY N007592, dated March 27, 2007 (clas-
sifying men’s triathlon shorts in heading 6114, HTSUS); NY J88284, dated
September 17, 2003; NY J88979, dated October 29, 2003; NY L81141, dated
December 8, 2004; and N102306, dated May 20,2010.
HOLDING:
By application of GRI’s 1 and 6, the woman’s triathlon racing short style
#1557 is classified in heading 6114, HTSUS, specifically, subheading
6114.30.3070, HTSUSA, which provides for “Other garments, knitted or
crocheted: Of man-made fibers: Other, Other: Women’s or girls’.” The column
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
one, general rate of duty is 14.9 percent ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and
the accompanying duty rates are provided on the World Wide Web at www.us-
itc.gov.
Style #1557 falls within textile category 659. With the exception of certain
products of China, quota/visa requirements are no longer applicable for
merchandise which is the product of World Trade Organization (WTO) mem-
ber countries. The textile category number above applies to merchandise
produced in non-WTO member-countries. Quota and visa requirements are
the result of international agreements that are subject to frequent renego-
tiations and changes. To obtain the most current information on quota and
visa requirements applicable to this merchandise, we suggest you check,
close to the time of shipment, the “Textile Status Report for Absolute Quotas”
which is available on our web site at www.cbp.gov. For current information
regarding possible textile safeguard actions on goods from China and related
issues, we refer you to the web site of the Office of Textiles and Apparel of the
Department of Commerce at www.otexa.ita.doc.gov.
EFFECT ON OTHER RULINGS:
NY N007456, dated March 6, 2007, is REVOKED.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
◆
PROPOSED REVOCATION OF A RULING LETTER AND
PROPOSED REVOCATION OF TREATMENT RELATING TO
THE TARIFF CLASSIFICATION OF STYLE # 10162 “KALO”
FOOTWEAR
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of proposed revocation of a tariff classification rul-
ing letter and proposed revocation of treatment relating to the clas-
sification of style # 10162 “Kalo” footwear.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§ 1625(c)), this notice advises interested parties that U.S. Customs
and Border Protection (“CBP”) proposes to revoke New York Ruling
Letter (“NY”) N212500, dated April 25, 2012, relating to the tariff
classification of style # 10162 “Kalo” footwear under the Harmonized
Tariff Schedule of the United States (“HTSUS”). CBP also proposes to
revoke any treatment previously accorded by it to substantially iden-
tical transactions. Comments are invited on the correctness of the
intended actions.
DATES: Comments must be received on or before August 28, 2015.
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
ADDRESSES: Written comments (preferably in triplicate) are to
be addressed to U.S. Customs and Border Protection, Office of
International Trade, Office of Regulations and Rulings, Attention:
Trade and Commercial Regulations Branch, 90 K Street, NE, 10th
Floor, Washington, D.C. 20229. Submitted comments may be
inspected at U.S. Customs and Border Protection, 90 K Street, NE,
10th Floor, Washington, D.C. during regular business hours.
Arrangements to inspect submitted comments should be made in
advance by calling Mr. Joseph Clark at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT: Elif Eroglu,
Valuation and Special Programs Branch: (202) 325–0277.
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI, (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.
Title VI amended many sections of the Tariff Act of 1930, as amended,
and related laws. Two new concepts which emerge from the law are
“informed compliance” and “shared responsibility.” These concepts
are premised on the idea that in order to maximize voluntary com-
pliance with Customs laws and regulations, the trade community
needs to be clearly and completely informed of its legal obligations.
Accordingly, the law imposes a greater obligation on CBP to provide
the public with improved information concerning the trade commu-
nity’s responsibilities and rights under the Customs and related laws.
In addition, both the trade and CBP share responsibility in carrying
out import requirements. For example, under section 484 of the Tariff
Act of 1930, as amended (19 U.S.C. § 1484), the importer of record is
responsible for using reasonable care to enter, classify and value
imported merchandise, and provide any other information necessary
to enable CBP to properly assess duties, collect accurate statistics and
determine whether any other applicable legal requirement is met.
Pursuant to section 625(c)(1), Tariff Act of 1930, as amended (19
U.S.C. § 1625(c)(1)), this notice advises interested parties that CBP
proposes to revoke a ruling letter related to the tariff classification of
style # 10162 “Kalo” footwear. Although in this notice, CBP is specifi-
cally referring to the proposed revocation of NY N212500 (Attach-
ment A), this notice covers any rulings on this merchandise which
may exist but have not been specifically identified. CBP has under-
taken reasonable efforts to search existing databases for rulings in
addition to the one identified. No additional rulings have been found.
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Any party who has received an interpretive ruling or decision (i.e.,
ruling letter, internal advice memorandum or decision or protest
review decision) on the merchandise subject to this notice, should
advise CBP during this notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19 U.S.C.
§ 1625 (c)(2)), as amended by section 623 of Title VI, CBP proposes to
revoke any treatment previously accorded by CBP to substantially
identical transactions. Any person involved in substantially identical
transactions should advise CBP during this notice period. An import-
er’s failure to advise CBP of substantially identical transactions or of
a specific ruling not identified in this notice, may raise issues of
reasonable care on the part of the importer or its agents for impor-
tations of merchandise subsequent to the effective date of the final
decision on this notice.
In NY N212500, CBP determined that the subject style # 10162
“Kalo” footwear was classifiable under subheading 6404.19.3940 HT-
SUS, which provides for “[f]ootwear with outer soles of rubber, plas-
tics, leather or composition leather and uppers of textile materials:
“[f]ootwear with outer soles of rubber, plastics, leather or composition
leather and uppers of textile materials: [f]ootwear with outer soles of
rubber or plastics: [o]ther: [f]ootwear with open toes or open heels;
footwear of the slip-on type, that is held to the foot without the use of
laces or buckles or other fasteners, the foregoing except footwear of
subheading 6404.19.20 and except footwear having a foxing or foxing-
like band wholly or almost wholly of rubber or plastics applied or
molded at the sole and overlapping the upper: [o]ther: [o]ther: [o]ther:
[f]or men.” Based upon our analysis, we have determined that the
subject style # 10162 “Kalo” footwear is properly classified under
subheading 6404.19.1520, HTSUS, the provision for “[f]ootwear with
outer soles of rubber, plastics, leather or composition leather and
uppers of textile materials: [f]ootwear with outer soles of rubber or
plastics]: [o]ther: [f]ootwear having uppers of which over 50 percent of
the external surface area (including any leather accessories or rein-
forcements such as those mentioned in note 4(a) to this chapter) is
leather: [f]or men.”
Pursuant to 19 U.S.C. § 1625(c)(1), CBP intends to revoke NY
N212500 and any other ruling not specifically identified, to reflect the
proper classification of the style # 10162 “Kalo” footwear according to
the analysis contained in proposed Headquarters Ruling Letter
(“HQ”) H219215, set forth as Attachment B to this document. Addi-
tionally, pursuant to 19 U.S.C. 1625(c)(2), CBP proposes to revoke any
treatment previously accorded by CBP to substantially identical
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transactions. Before taking this action, consideration will be given to
any written comments timely received.
Dated: July 10, 2015
I
EVA K. O’ROURKE
for
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
Attachments
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CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO. 30, JULY 29, 2015
[ATTACHMENT A]
N212500
April 25, 2012
CLA-2–64:OT:RR:NC:N4:447
CATEGORY: Classification
TARIFF NO.: 6404.19.3940
M
S.LUCILLE DE NOBREGA
OLUKAI
8955 RESEARCH DRIVE
IRVINE, CA 92618
RE: The tariff classification of footwear from China
D
EAR MS.DE NOBREGA:
In your electronic ruling request submitted on February 23, 2012 and your
follow up submission received on April 4, 2012, you requested a tariff classi-
fication ruling.
The submitted sample identified as style #10162 “Kalo,” is a pair of men’s
open toe/heel flip-flop thong sandals with rubber or plastics outer soles. The
two component V-shaped strap upper of each sandal, described as predomi-
nately leather (51.49%) in a “Test Report” by Intertek Testing Services,
consist of three leather overlays stitched to a textile substrate. Two of these
leather overlays which are lasted under and cemented to the sole, add struc-
tural strength to the textile upper and constitute external surface area. The
remaining overlay is stitched to the center of the textile substrate (which is
plausible upper material) and is considered an accessory or reinforcement.
Consequently, this overlay is excluded from the external surface area mea-
surement of the upper pursuant to Note 4(a) to Chapter 64, Harmonized
Tariff Schedule of the United States (HTSUS). Therefore, we disagree with
the findings of the “Test Report” and conclude that the constituent material
having the greatest external surface area of the upper (no account being
taken of accessories or reinforcements) is textile.
The applicable subheading for the men’s thong sandals, style #10162
“Kalo” will be 6404.19.3940, HTSUS, which provides for footwear with outer
soles of rubber, plastics, leather or composition leather and uppers of textile
materials: footwear with outer soles of rubber or plastics: other: footwear
with open toes or open heels; footwear that is more than 10 percent by weight
of rubber or plastics; other: other: for men. The rate of duty will be 37.5
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 World Wide Web at http://www.usitc.gov/tata/hts/.
The submitted sample is not marked with the country of origin. Therefore,
if imported as is, it will not meet the country of origin marking requirements
of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally
marked under the provisions of 19 C.F.R. 134.11 which states, “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 container) will permit, in such manner as to indicate to the
ultimate purchaser in the U.S. the English name of the country of origin of
the article.”
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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 Stacey Kalkines at (646) 733–3042.
Sincerely,
T
HOMAS J. RUSSO
Director
National Commodity Specialist Division
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[ATTACHMENT B]
HQ H219215
OT:RR:CTF:TCM H219215 EE
CATEGORY: Classification
TARIFF NO.: 6404.19.1520
L
UCILLE DE NOBREGA
OLUKAI
8955 RESEARCH DRIVE
IRVINE, CA 98618
RE: Tariff classification of style # 10162 “Kalo” footwear; Reconsideration of
NY N212500
D
EAR MS.DE NOBREGA:
This letter is to inform you that U.S. Customs and Border Protection
(“CBP”) has reconsidered New York Ruling Letter (“NY”) N212500 issued to
you on April 25, 2012, concerning the tariff classification under the Harmo-
nized Tariff Schedule of the United States (“HTSUS”) of style # 10162 “Kalo”
footwear. We have reviewed that ruling and found it to be in error. Therefore,
this ruling revokes NY N212500.
FACTS:
The footwear is described in NY N212500 as follows:
Style #10162 “Kalo,” is a pair of men’s open toe/heel flip-flop thong san-
dals with rubber or plastics outer soles. The two component V-shaped
strap upper of each sandal, described as predominately leather (51.49%)
in a “Test Report” by Intertek Testing Services, consist of three leather
overlays stitched to a textile substrate. Two of these leather overlays
which are lasted under and cemented to the sole, add structural strength
to the textile upper and constitute external surface area. The remaining
overlay is stitched to the center of the textile substrate (which is plausible
upper material) and is considered an accessory or reinforcement. Conse-
quently, this overlay is excluded from the external surface area measure-
ment of the upper pursuant to Note 4(a) to Chapter 64, Harmonized Tariff
Schedule of the United States (HTSUS). Therefore, we disagree with the
findings of the “Test Report” and conclude that the constituent material
having the greatest external surface area of the upper (no account being
taken of accessories or reinforcements) is textile.
Style # 10162 “Kalo” was found to be classifiable under subheading
6404.19.3940, HTSUS, which provides for “[f]ootwear with outer soles of
rubber, plastics, leather or composition leather and uppers of textile materi-
als: [f]ootwear with outer soles of rubber or plastics: [o]ther: [f]ootwear with
open toes or open heels; footwear of the slip-on type, that is held to the foot
without the use of laces or buckles or other fasteners, the foregoing except
footwear of subheading 6404.19.20 and except footwear having a foxing or
foxing-like band wholly or almost wholly of rubber or plastics applied or
molded at the sole and overlapping the upper: [o]ther: [o]ther: [o]ther: [f]or
men.”
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ISSUE:
Whether the subject merchandise is classified as footwear in subheading
6404.19.39, HTSUS, or as footwear under subheading 6404.19.15, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of
goods shall be determined according to the terms of the headings of the tariff
schedule and any relative section or chapter notes. In the event that the
goods cannot be classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRIs 2 through 6 may
then be applied in order.
The 2015 HTSUS provisions under consideration are:
6404 Footwear with outer soles of rubber, plastics, leather or composi-
tion leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:
6404.19 Other:
6404.19.15 Footwear having uppers of which over 50 percent
of the external surface area (including any
leather accessories or reinforcements such as
those mentioned in note 4(a) to this chapter) is
leather...
***
Footwear with open toes or open heels; footwear
of the slip-on type, that is held to the foot without
the use of laces or buckles or other fasteners, the
foregoing except footwear of subheading
6404.19.20 and except footwear having a foxing or
foxing-like band wholly or almost wholly of rub-
ber or plastics applied or molded at the sole and
overlapping the upper:
Other:
6404.19.39 Other...
Chapter 64, Note 4, HTSUS, provides in relevant part:
(a) The material of the upper shall be taken to be the constituent
material having the greatest external surface area, no account being
taken of accessories or reinforcements such as ankle patches, edging,
ornamentation, buckles, tabs, eyelet stays or similar attachments.
General Explanatory Note (“EN”) D to Chapter 64 reads, in pertinent
part, as follows
1
:
For the purposes of the classification of footwear in this Chapter, the
constituent material of the uppers must also be taken into account. The
upper is the part of the shoe or boot above the sole. However, in certain
1
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s)
constitute the official interpretation of the Harmonized System. While not legally binding
on the contracting parties, and therefore not dispositive, the EN’s 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 HTSUS. CBP believes the EN’s should always be
consulted. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
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footwear with plastic moulded soles or in shoes of the American Indian
moccasin type, a single piece of material is used to form the sole and
either the whole or part of the upper, thus making it difficult to identify
the demarcation between the outer sole and the upper. In such cases, the
upper shall be considered to be that portion of the shoe which covers the
sides and top of the foot. The size of the uppers varies very much between
the different types of footwear, from those covering the foot and the whole
leg, including the thigh (for example, fishermen’s boots), to those which
consist simply of straps or thongs (for example, sandals).
If the upper consists of two or more materials, classification is determined
by the constituent material which has the greatest external surface area,
no account being taken of accessories or reinforcements such as ankle
patches, protective or ornamental strips or edging, other ornamentation
(e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or slide
fasteners. The constituent material of any lining has no effect on classi-
fication.
In the instant case, the upper of the style # 10162 “Kalo” footwear consists
of both textile and leather materials. As previously noted, two of the three
leather overlays stitched to the sides of the upper are lasted under and
cemented to the sole. In NY N212500, CBP determined that the third leather
overlay, which is stitched to the center of the textile substrate, is an accessory
or reinforcement. The Test Report by Intertek Testing Services indicated that
the ESAU, including the leather component considered to be an accessory or
reinforcement, consisted of 51.49% leather. Chapter 64, Note 4, HTSUS,
provides that accessories or reinforcements are not considered when calcu-
lating the ESAU. Since the leather overlay attached to the center of the
textile substrate, which was determined to be an accessory or reinforcement,
is not considered when calculating the ESAU, the constituent material which
provides the greatest ESAU is textile. Accordingly, the merchandise is con-
sidered to have uppers of textile materials and classifiable in heading 6404,
HTSUS. However, in determining the applicable subheading, we find that the
leather component considered to be an accessory or reinforcement is included
in the ESAU requirement. Specifically, the merchandise is classified under
subheading 6401.19.15, HTSUS, which provides for footwear having uppers
of which over 50% of the external surface area is leather including any
leather accessories or reinforcement such as those mentioned in Note 4(a) to
Chapter 64.
HOLDING:
By application of GRI 1, the subject style # 10162 “Kalo” is classified in
heading 6404, HTSUS, more specifically, it is classified in subheading
6404.19.1520, HTSUS, which provides for: “[f]ootwear with outer soles of
rubber, plastics, leather or composition leather and uppers of textile materi-
als: [f]ootwear with outer soles of rubber or plastics]: [o]ther: [f]ootwear
having uppers of which over 50 percent of the external surface area (includ-
ing any leather accessories or reinforcements such as those mentioned in note
4(a) to this chapter) is leather: [f]or men.” The 2015 column one, general rate
of duty, is 10.5% ad valorem.
Duty rates are provided for your convenience and subject to change. The
text of the most recent HTSUS and the accompanying duty rates are provided
on the World Wide Web at www.usitc.gov.
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EFFECT ON OTHER RULINGS:
NY N212500, dated March 21, 2012, is hereby REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60
days after its publication in the Customs Bulletin.
Sincerely,
M
YLES B. HARMON,
Director
Commercial and Trade Facilitation Division
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