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NY G85997




January 19, 2001

CLA-2-18:RR:NC:SP:232 G85997

CATEGORY: CLASSIFICATION

TARIFF NO.: 1806.20.7300

Mr. Clark D. Bien
Total Foods Corporation
6018 West Maple Rd.
Suite 888
West Bloomfield, MI 48322-4404

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of a sweetened cocoa powder mixture from Mexico; Article 509

Dear Mr. Bien:

In your letter dated December 27, 2000 you requested a ruling on the status of a sweetened cocoa powder mixture from Mexico under the NAFTA. Your request also asks for the country of origin for marking purposes of the product.

The subject merchandise is stated to contain 84.90 percent granulated sugar, 13.18 percent cocoa powder, 1.60 percent salt, 0.16 percent artificial vanilla flavor and 0.16 percent gum. The sugar will be produced in Mexico, and the cocoa powder will be produced in the United States from cocoa beans from non-NAFTA countries. The balance of ingredients will be produced in the United States. All of the ingredients will be blended and packaged in Mexico in one ton poly-lined super sacks and/or 50 pound and 100 pound paper bags. After importation into the United States, the merchandise will be sold to beverage manufactures, who add additional ingredients to produce finished cocoa drink mixes.

The applicable subheading for the sweetened cocoa powder mixture will be 1806.20.7300, Harmonized Tariff Schedule of the United States (HTS), which provides for Chocolate and other food preparations containing cocoa: Other preparations in blocks, slabs or bars, weighing more than 2 kg or in liquid, paste, powder, granular or other bulk form in containers or immediate packings, of a content exceeding 2 kg: Other: Containing more than 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 30.5 cents per kilogram plus 8.5 percent ad valorem.

The non-originating material used to make the sweetened cocoa powder mixture has satisfied the change in tariff classification required under HTSUSA General Note 12(t)/18. The sweetened cocoa powder mixture will be entitled to a free rate of duty if entered under the terms of general note 12 of the Harmonized Tariff Schedule of the United States, and imported in quantities that fall within the quantitative limits of U.S. note 18 to subchapter 6 of chapter 99 HTS pursuant to subheading 9906.18.17. If the quantitative limits of U.S. note 18 to subchapter 6 of chapter 99 have been reached, and if the product is valued not over 28.3 cents per kilogram, it will be dutiable at the rate of 6.8 cents per kilogram in subheading 9906.18.18, HTS. If valued over 28.3 cents per kilogram, the rate of duty will be 24.1 percent ad valorem, pursuant to subheading 9906.18.19, HTS, upon compliance with all applicable laws, regulations, and agreements.

Your inquiry also requests a ruling on the country of origin marking requirements for an imported article which is 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 sweetened cocoa powder mixture is processed in a NAFTA country "Mexico" prior to being imported into the U.S. Since, "Mexico" 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 sweetened cocoa powder mixture 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 sweetened cocoa powder mixture is a good of the "Mexico" for marking purposes, since it satisfies the requirements of Section 102.11(a)(3).

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

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

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 212-637-7059.

Sincerely,

Robert B. Swierupski
Director,

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