H313148

 HQ H313148 December 9, 2020 OT:RR:CTF:FTM H313148 TJS CATEGORY: Classification; Origin TARIFF NO.: 0702.00.20; 0702.00.40; 0702.00.60 Ms. Sheri G. Lawson Wilson International Inc. 160 Wales Avenue, Ste. 100 Tonawanda, New York 14150 RE: Tariff Classification of Pasta Kits; USMCA; Country of Origin Marking Dear Ms. Lawson, This is in response to your correspondence, dated January 8, 2020, in which you requested a binding ruling, on behalf of Mastronardi Produce Ltd. (“Mastronardi”), concerning the tariff classification, country of origin marking, and eligibility of certain pasta and tomato meal kits for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”). Your request, submitted as an electronic ruling request, was forwarded to this office from the National Commodity Specialist Division for review. Our ruling is set forth below. FACTS: The merchandise is pasta and tomato meal kits in the following four varieties: “You Make Me Chill | Cold Pasta Salad Kit” (hereinafter “Pasta Salad Kit”), “You Make Me Hot | Spicy Arrabbiata Pasta Kit” (hereinafter “Arrabbiata Pasta Kit”), “You Make Me Blush | Creamy Parmesan Pasta Kit” (hereinafter “Creamy Parmesan Pasta Kit”), and “You Make Me Fresh | Classic Italian Pasta Kit” (hereinafter “Classic Italian Pasta Kit”). The pasta kits consist of fresh greenhouse grown tomatoes harvested in Canada, the United States, or Mexico (depending on the time of year), uncooked pasta from the United States, and a spice packet from the United States or Canada. Each kit except the Creamy Parmesan Pasta Kit also includes an herb-infused oil packet from Italy. The ingredients are packaged together in Canada and then imported into the United States and sold to retail grocery stores. The kits are packaged in plastic containers and sold in the produce section of grocery stores. The Pasta Salad Kit contains approximately 67% tomatoes, 29% pasta, 2% herb-infused oil, and 2% Italian spices. The Spicy Arrabbiata Pasta Kit contains approximately 67% tomatoes, 29% pasta, 2% herb-infused oil, and 1% Arrabbiata spices. The Creamy Parmesan Pasta Kit contains approximately 66% tomatoes, 29% pasta, and 5% creamy parmesan cheese spices. The Classic Italian Pasta Kit contains approximately 67% tomatoes, 29% pasta, 2% herb-infused oil, and 2% Italian spices. The directions for the Spicy Arrabbiata Pasta Kit, Creamy Parmesan Pasta Kit, and Classic Italian Pasta Kit instruct the user to boil the pasta, prepare the tomatoes and spices into a sauce, and combine all the components. The Pasta Salad Kit requires the user to boil the pasta, cut the tomatoes, prepare a dressing, and combine all the components. According to your submission, the tomatoes represent approximately 60-70% of the value of the kits and they take up about 60-70% of the space in the plastic container in which the kits are packaged and sold. The herb-infused oil packet represents approximately 7-9% of the value of the kits, depending on the variety. ISSUES: What is the tariff classification of the pasta kits? Whether the pasta kits imported into the United States from Canada are eligible for preferential tariff treatment under the USMCA. What is the country of origin of the pasta kits for marking purposes? LAW AND ANALYSIS: Tariff Classification Classification of goods 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. GRI 3(a) and (b) provide 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: 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. * * * * * In understanding the language of the HTSUS, the Explanatory Notes (“EN”) of the Harmonized Commodity Description and Coding System may be utilized. The EN, 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 (Aug. 23, 1989). The EN to GRI 3(b) state, in pertinent part: This second method relates only to: Mixtures. Composite goods consisting of different materials. Composite goods consisting of different components. Goods put up in sets for retail sales. It applies only if Rule 3(a) fails. 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. 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. [. . .] For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which: consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards). “Retail sale” does not include sales of products which are intended to be re-sold after further manufacture, preparation, repacking or incorporation with or into other goods. The term “goods put up in sets for retail sale” therefore only covers sets consisting of goods which are intended to be sold to the end user where the individual goods are intended to be used together. For example, different foodstuffs intended to be used together in the preparation of a ready-to-eat dish or meal, packaged together and intended for consumption by the purchaser would be a “set put up for retail sale”. The EN to GRI 3(b) further provide the following example of a set that can be classified by reference to GRI 3(b): Sets, the components of which are intended to be used together in the preparation of a spaghetti meal, consisting of a packet of uncooked spaghetti (heading 19.02), a sachet of grated cheese (heading 04.06) and a small tin of tomato sauce (heading 21.03), put up in a carton: Classification in heading 19.02. * * * * * The pasta kits meet all three of the criteria for classification as a set per the EN to GRI 3(b). First, the pasta kits consist of different articles which are, prima facie, classifiable in different headings. Tomatoes are classified in heading 0702, HTSUS, which provides for, “Tomatoes, fre

Tariff ClassificationClassification of goods 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. GRI 3(a) and (b) provide 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: 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.* * * * * In understanding the language of the HTSUS, the Explanatory Notes (“EN”) of the Harmonized Commodity Description and Coding System may be utilized. The EN, 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 Syst