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NY C81486




December 3, 1997

CLA-2-21:RR:NC:2:228 C81486

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9500, 2106.90.9700

Patrick E. Mines
P. Mines Customs Services
P.O. Box 1197
Fort Erie, Ontario L2A 5Y2

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

Dear Mr. Mines:

In your letter dated November 10, 1997, you requested a ruling on the status of Surimi Cryoprotectant from Canada under the NAFTA.

A sample and an ingredients breakdown were submitted with your letter. The sample was examined and disposed of. Surimi Cryoprotectant is a crystalline blend of 53.7 percent sorbitol, 43 percent sugar, 1.6 percent tetrasodium pyrophosphate, and 1.61 percent sodium tripolyphosphate. The raw sugar is from Australia, Brazil, Guatemala, or Colombia. The sorbitol is from a NAFTA country, Malaysia or France. The tetrasodium pyrophosphate, and sodium tripolyphosphate are from the United States. The raw sugar is refined in Canada, mixed with the other ingredients, and packed in 25-kilogram units. The Surimi Cryoprotectant is added to raw fish protein to enhance its texture, and to prevent the formation of ice crystals when it is frozen.

The applicable subheading for the Surimi Cryoprotectant, if imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 17, will be 2106.90.9500 Harmonized Tariff Schedules of the United States (HTS), which provides for food preparations not elsewhere specified or included...other...other...other...articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17...described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. The rate of duty will be 10 percent. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, the product will be classified in subheading 2106.90.9700, HTS, and dutiable at the rate of 31.4 cents per kilogram plus 9.2 percent ad valorem.

Each of the non-originating materials used to make the Surimi Cryoprotectant has satisfied the changes in tariff classification required under HTSUSA General Note 12(t)/21/14. The product will be entitled to a 1 percent ad valorem 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 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 these goods are set forth in Part 134, 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. (Emphasis added).

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 imported Surimi Cryoprotectant is a good of Canada for marking purposes.

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 Stanley Hopard at 212-466-5760.

Sincerely,

Robert B. Swierupski
Director,

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