A tariff classification, country of origin and marking determination of fish smokers

N323340 January 13, 2022 CLA-2-44:OT:RR:NC:4:434 CATEGORY: Classification, Country of Origin, and Marking TARIFF NO.: 4421.99.9780 Jonathan Lieberman New York Customs Brokers, Inc. 148-02 Guy R. Brewer Blvd. Jamaica, NY 11434   RE: A tariff classification, country of origin and marking determination of fish smokers Dear Mr. Lieberman: In your letter, dated December 21, 2021, you requested a tariff classification, country of origin, and marking ruling on a fish smoker kit on behalf of your client, Bakkafrost USA. A detailed description of the item, the manufacturing operations, values, and photos were submitted for our review. The item under consideration is a fish smoker “starterkit.” Packaged together for retail sale is a rack made of Poplar and Beech wood, measuring approximately 13” x 11” x 33.5” high, three metal hooks, one biodegradable bag, a metal stand, and five smokepins. In use, fish (or other food items) are hung from the wooden rack using the metal hooks or laid atop the wood dowel grill. The smokepins are set below the rack on the metal stand and lit to create smoke. The biodegradable bag is placed over the fish rack to trap sufficient smoke, allowing only a small amount of smoke to vent out the top. You also state that the smoker may be used to smoke meat, cheese or vegetables. It is intended to be used outdoors on a terrace, patio, balcony, campsite, etc. In previous ruling N321450, which addressed the classification and country of origin of the smokepins imported alone, the smokepins were described as follows: “the wooden smoke pins are made of sawdust from different woods, such as oak, beech and hickory. The sawdust is mixed with water and a food grade stabilizer - hydroxypropyl methylcellulose (E464) - and is then molded into a cylindrical shaped pin. Subsequently, a hole is formed through the center of the pin. The pins measure approximately 12 centimeters in length and 2 centimeters in diameter. You indicate the smoke pins are meant to be burned to slowly release scented aromas to enhance the smoking and curing of food products.” The smokepins were classified in heading 4401, Harmonized Tariff Schedule of the United States (HTSUS). The country of origin of the smokepins was determined to be Germany. Here we will address tariff classification of the entire kit. Is the kit a set? For classification purposes, the word “set” has a specific connotation defined in the Explanatory Notes (ENs) to the HTSUS. The ENs constitute the official interpretation of the tariff at the international level. EN X to General Rule of Interpretation (GRI) 3(b) provides: “for the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles put together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).” Sets are classified according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character. The item under consideration consists of multiple articles (wood rack, metal hooks, smokepins, biodegradable bag, metal stand,) classifiable under separate headings. They are packaged together for retail sale. They are put together to carry out a specific activity, that of smoking fish or other foods. Therefore, they meet the definition of a “set.” Sets are classified according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character, which may 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 article. The wooden rack predominates by value and is an indispensable, reusable component. We find that the wooden rack gives the set its essential character, and therefore, the whole set will be classified accordingly under the provision for the wooden rack in chapter 44, HTSUS, as articles of wood. The applicable subheading for the fish smoker kits will be 4421.99.9780, HTSUS, which provides for Other articles of wood: Other: Other: Other: Other: Other. The rate of duty will be 3.3 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 https://hts.usitc.gov/current. Please note that modifications to the HTSUS (to align the HTSUS with the 2022 version of the Harmonized Commodity Description and Coding System) pursuant to Section 1206 of the Omnibus Trade and Competitiveness Act of 1988 are forthcoming. These modifications, made by Presidential Proclamation 10326 and set forth in Annexes I, II.A, and II.B of U.S. International Trade Commission Publication 5240, will be effective on January 27, 2022. To the extent that the modifications to the HTSUS impact the classification of the merchandise subject to this ruling, you may submit a new ruling request at that time. You further inquire about the country of origin for entry purposes and for marking purposes for the fish smoker sets. You state that the separate items are manufactured in the following countries: Wooden rack: Turkey Smokepins: Germany, per New York ruling N321450, issued 10/04/21. Steel Hooks: China Biodegradable bags: Austria Metal Stand: Denmark The separate components are packaged together in Turkey inside a cotton bag for retail sale. You state that the retail bag is a product of Turkey. In the instant case, the wooden rack, which provides the essential character for classification purposes, is made in Turkey. Therefore, the entire set shall be considered country of origin Turkey for entry purposes. 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 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. Section 134.1(d) defines the "ultimate purchaser" generally as the last person in the United States who will receive the article in the form in which it was imported. The marking must be conspicuous to the ultimate purchaser. Here, the ultimate purchaser is the person who buys the fish smoker kit at retail. The "country of origin" for marking purposes is defined by section 134.1(b), Customs Regulations (19 CFR 134.1(b)), to mean the country of manufacture, production, or growth of any article of foreign origin entering the U.S. When articles manufactured in different countries are combined or assembled, Customs must determine the country of origin, for marking purposes. The country of origin is the country where the article last underwent a "substantial transformation", i.e., processing which results in a change in the article's name, character, or use. See section 134.35, Customs Regulations (19 CFR 134.35). In this instance, the packaging of the fish smoker kit items into a set does not constitute a substantial transformation because the resulting product is not a new article in which the constituents lose their separate identities. Each kit item remains clearly identifiable. Therefore, under section 304 of the Tariff Act, the kits must be marked to indicate to the ultimate purchaser in the U.S. the foreign origin of the items contained therein.The required marking for such articles is addressed in Treasury Decision (T.D.) 91-7, in which Customs determined that materials of foreign origin which comprise sets, mixtures, or composite goods must be marked separately to indicate their country of origin unless substantially transformed. Pursuant to the general marking requirements and T.D. 91-7, the fish smoker kits must be marked to indicate the countries of origin of the individual components: the wooden rack (Turkey), smokepins (Germany), hooks (China), biodegradable bag (Austria), and metal stand (Denmark). For the smoker kits it is sufficient for the outer retail packaging, the cotton bag, to be marked to indicate the respective countries of origin for all the included items, listed separately. No sample of prospective marking was provided for our evaluation, but examples of acceptable methods of marking would include legible printing directly on the cotton bags or on a hang tag or sticker that is adhered well enough that it will not be removed before reaching the ultimate purchaser. You may also find existing Headquarters rulings HQ 735009 (7/30/93) and HQ 735371 (10/19/93) informative. The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and submit a request for a new ruling in accordance with 19 CFR 177.2. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by CBP. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Charlene Miller charlene.s.miller@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division