The tariff classification, country of origin, and status under the North American Free Trade Agreement (NAFTA) of a whey protein concentrate and isolate blend from Canada, Article 509.

N285001 May 5, 2017 CLA-2-21:OT:RR:NC:N4:228 CATEGORY: Classification TARIFF NO.: 2106.10.0000 Ms. Jodi Hurnacki Dure Foods 120 Roy Blvd. Brantford, Ontario N3R 7K2 Canada RE: The tariff classification, country of origin, and status under the North American Free Trade Agreement (NAFTA) of a whey protein concentrate and isolate blend from Canada, Article 509. Dear Ms. Hurnacki: In your letter, dated March 27, 2017, you requested the tariff classification, country of origin, and status under the North American Free Trade Agreement (NAFTA) of a whey protein concentrate and isolate blend. An ingredients breakdown, and sample accompanied your inquiry. The sample was examined and discarded. Dure brand whey protein concentrate and isolate blend is said to contain 83 percent whey protein concentrate, 10 percent whey protein isolate, 5 percent maltodextrin, 1 percent silicon dioxide, all origin United States (U.S.), and less than 1 percent each sucralose, origin China, and vanilla flavoring, origin Canada, or U.S. You state in your letter that the product is blended and packaged at your facility in Canada. The product may be packaged in single serve sachets, stick packs, pillow pouches, corrugate tins, PVC jars, stand up pouches, bulk boxes and super sacs. Packaging can be customized based on the customer’s needs. The applicable subheading for the whey protein concentrate and isolate blend will be 2106.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included . . . protein concentrates and textured protein substances. The general 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 https://hts.usitc.gov/current. 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— 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 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, the whey protein concentrate and isolate blend qualifies for NAFTA preferential treatment because it meets the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.12. The good 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, 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 the merchandise concerned are set forth in Part 102, Customs Regulations. Section 134.1(b) of the regulations, defines "country of origin" as: the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within this Part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish. As provided in Section 134.41(b), Customs Regulations (19 CFR 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. 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 Section 102.20 of the regulations to the facts of this case, we find that the country of origin of the whey protein concentrate and isolate blend for marking purposes is the U. S. The country of origin for Customs duty purposes will be Canada. The sample you submitted indicating Canada is not properly marked. For the whey protein concentrate and isolate blend, 19 CFR Sections 102.11 (a) (1), (2) and (3) are not applicable. Consequently, 19 CFR Section 102.11 (b) (1) is applicable, and as such the county of origin that imparts the essential character to the whey protein concentrate and isolate blend is the 83 percent whey protein concentrate of U.S. origin. Accordingly, the country of origin of the whey protein concentrate and isolate blend is the U.S. Products of the U.S. are not required to be marked with the country of origin. 19 CFR Section 102.19(b), NAFTA preference override, is applicable because the country of origin is the U.S. Because the good was further advanced in value or improved in condition in Canada, for duty purposes only, the country of origin is Canada. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. This ruling is being issued under the provisions of Part 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, Steven A. Mack Director National Commodity Specialist Division