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NY N021672

January 16, 2008



TARIFF NO.: 2309.90.9500

Mr. Larry Ordet
Sandler, Travis & Rosenberg, P.A.
The Waterford
5200 Blue Lagoon Drive
Miami, FL 33126-2022

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of liquid fish food in a pump dispenser, from Canada; Article 509

Dear Mr. Ordet:

In your letter dated November 12, 2007, together with an additional submission dated January 4, 2008, you requested a ruling on the status of certain liquid fish food from Canada under the NAFTA. The ruling was requested on behalf of your client, Sunsolar Energy Technologies.

The product in question is described as a liquid fish food put up for retail sale in an automatic dispenser. A sample of the dispenser (without the fish food) was submitted for our examination. It is a sealed, irregularly shaped pouch, roughly 6โ€ x 10โ€ x 1โ€, made of flimsy, flexible plastic sheeting. It is printed on each side with a picture of a seahorse against a blue, marine-themed background; a short plastic tube protrudes from each end of the pouch. The lower portion of the interior is said to house a built-in peristaltic pump and ballast. The end user will evidently place the entire, food-filled dispenser into the water within an aquarium. Each day, the pump, which works on contact with water, will emit a certain amount of liquid fish food. Once the supply of liquid food has been exhausted, the dispenser will be removed from the aquarium and discarded. It is not refillable.

The liquid fish food consists of marine lipids, ascorbic acid, thiamine, vitamin B12 and deionized water. Based on information you submitted, it appears to be formulated specifically to serve as a dietary supplement for freshwater and saltwater fish, providing nutrients and stimulating the immune system.

You have outlined a scenario in which the pump dispenser will be produced in China and then shipped to Canada in assembled condition. (However, the plastic pouch will be open at one end.) In Canada, the pouch will be filled with the liquid fish food (a product of either Canada or the United States), manually closed and then heat-sealed. The article will then be tested, packaged for retail sale and, finally, shipped to the U.S.

According to cost figures accompanying your inquiry, the value of the liquid fish food in one unit will be about two and one-half times the value of the pump dispenser. Considering that fact, together with the non-reusability of the dispenser and the presumption that the product will be marketed and used primarily as fish food rather than as a pump dispenser, we will regard the latter as part of the disposable retail container/packaging for the fish food.

The applicable tariff provision for the above-described fish food in a pump dispenser will be 2309.90.9500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other (non-enumerated) preparations of a kind used in animal feeding. The general rate of duty will be 1.4%.

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. ยง 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; 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 goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b)(i). (Since the non-originating dispenser is being treated as a retail container classified with its contents, it is being disregarded for NAFTA-eligibility purposes, in accordance with General Note 12(j), HTSUS, and 19 CFR 102.15(a)(1).) 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 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 Nathan Rosenstein at 646-733-3030.


Robert B. Swierupski

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