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NY D80811




August 17, 1998

CLA-2-18:RR:NC:SP:232 D80811

CATEGORY: CLASSIFICATION

TARIFF NO.: 1704.90.6800

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

RE: The tariff classification of a fondant from Canada.

Dear Mr. Mines:

In your letter dated July 21, 1998, on behalf of Berthelet Food Products Inc., you requested a tariff classification ruling. Your request also asks for the country of origin for marking purposes of the product.

The subject merchandise is stated to contain 80 percent sugar, 12 percent glucose, 8 percent water, 30 grams of vanillin and 40 grams Metabisulfite. The raw sugar will originate in either Australia, Brazil, Guatemala, South Africa or Columbia. The sugar will be refined in Canada. The other ingredients will be from the United States or Canada. The fondant will be produced in Canada and shipped to the United States in 20 kilogram cartons. After importation, the fondant is blended with other ingredients and used in various bakery and pastry applications.

The applicable tariff provision for the fondant will be 1704.90.6800, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for Sugar confectionery (including white chocolate), not containing cocoa...other ...other...other...articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17...other. The general rate of duty will be 42.5 cents per kilogram plus 11 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

Your inquiry also requests a ruling on the country of origin marking requirements for imported articles which are processed in a NAFTA country prior to being imported into the U.S. A marked sample was not submitted with your letter for review.

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.

You state that the imported fondant is processed in a NAFTA country "Canada" prior to being imported into the U.S. Since, "Canada" is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported fondant is a good of a NAFTA country", and thus subject to the NAFTA marking requirements.

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 fondant is a good of "Canada" for marking purposes, since it satisfies the requirements of Section 102.20 (d).

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 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 John Maria at 212-466-5730.

Sincerely,

Robert B. Swierupski
Director,

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