The tariff classification, country of origin, country of origin marking, and status under the North American Free Trade Agreement (NAFTA) of a dietary supplement from Canada; Article 509

N266831 August 6, 2015 CLA-2-21:OT:RR:NC:N2:228 CATEGORY: Classification TARIFF NO.: 2106.90.9998 Mr. Tariq Shaikh Farrow International Trade Consulting 5397 Eglinton Avenue West – Suite 220 Etobicoke, Ontario M9C 5K6 Canada RE: The tariff classification, country of origin, country of origin marking, and status under the North American Free Trade Agreement (NAFTA) of a dietary supplement from Canada; Article 509 Dear Mr. Shaikh: In your letter dated July 17, 2015, on behalf of International Nutrient Technologies, Canada, you requested a ruling on classification, country of origin, country of origin marking, and the status under the NAFTA of a dietary supplement from Canada. Additional information was provided via eMail message dated July 28, 2015. An ingredients breakdown, product specification sheet, description of production steps and manufacturing process accompanied your inquiry. 24-0389 Omega 3 Prenatal Soft Gelatin Capsules are said to be filled with FMO-DHA fish oil 65/560 (65 mg/g EPA EE and 560 mg/g DHA EE) from Norway. The shell ingredient is composed of gelatin from the United States (U.S.), glycerin from Malaysia, and purified water from Canada. The enteric coating on the capsules is said to be composed of NS Enteric 29Z19241 Clear, and Surelease E-79040 Clear both from the U.S. The ingredients are blended, and encapsulated in Canada as a dietary supplement for human consumption, and sold in bulk for expectant and nursing mothers, and for women planning a pregnancy. The applicable subheading for 24-0389 Omega 3 Prenatal Soft Gelatin Capsules will be 2106.90.9998, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included . . . other . . . other . . . other. The rate of duty will be 6.4 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 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-- (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 . . . . Based on the facts provided, 24-0389 Omega 3 Prenatal Soft Gelatin Capsules described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b) (ii) (A) and General Note 12(t)/21.14. The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. § 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, CBP Regulations (19 C.F.R. 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 CBP Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, CBP Regulations. The marking requirements of these goods are set forth in Part 134, CBP Regulations. Section 134.1(b) of the regulations, defines "country of origin" as: the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within this Part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a) (2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish. Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the country of origin of 24-0389 Omega 3 Prenatal Soft Gelatin Capsules is Canada. As provided in section 134.41(b), CBP Regulations (19 C.F.R. 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. In section 134.1(k), CBP Regulations (19 C.F.R. 134.1(k)), “Conspicuous” means capable of being easily seen with normal handling of the article or container. With regard to the permanency of marking, section 134.41(a), CBP Regulations (19 C.F.R. 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, CBP Regulations (19 C.F.R. 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. In this case, 24-0389 Omega 3 Prenatal Soft Gelatin Capsules may be marked “Product of Canada” or similar language in a conspicuous place as legibly, indelibly and permanently as the nature of its container will permit. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site ww.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 Bruce N. Hadley, Jr. at bruce.hadleyjr@cbp.dhs.gov. Sincerely, Gwenn Klein Kirschner Director National Commodity Specialist Division