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NY H83165




July 17, 2001

CLA-2-17:RR:NC:2:228 H83165

CATEGORY: CLASSIFICATION

TARIFF NO.: 1704.90.3550; 1905.30.0049; 1905.90.1050; 9801.00.1097

Mr. Scott R. Boyer
Kraft Foods North America, Inc.
910 Mayer Avenue 6S
Madison, WI 53704

RE: The tariff classification and country of origin marking of snack items from Mexico; Article 509

Dear Mr. Boyer:

In your letter dated June 29, 2001, you requested a ruling on the status of snack items from Mexico under the NAFTA.

Three samples, submitted with your letter, were examined and disposed of. Oscar Mayer® Lunchables® Fun Snacks consist of a rectangular plastic tray with three compartments, each containing a component of a snack product the consumer is to assemble. Marshmallow Crispy Square consists of one 2½ x 2¼-inch crisp rice snack (marshmallow, rice cereal, flavor, margarine) and a 3-inch plastic wand in the main compartment, a portion of marshmallow cream in the second compartment, and rainbow sprinkles in the third tray cavity. Chocolate Chip Cookie contains one 2½-inch diameter chocolate chip cookie and a plastic wand in the main compartment, vanilla frosting in the second, and chocolate chips in the third. Fudge Brownie contains one 2½ x 2¼-inch brownie and a plastic wand in the main compartment, chocolate frosting in the second, and rainbow sprinkles in the third section. The open top of each tray is sealed with a printed paper and plastic film laminate material, and a printed paper card with the nutrition information and ingredients listing is glued to the bottom. Two trays are placed one atop the other, and overwrapped with clear plastic film.

The chocolate chip cookie, brownie, chocolate and vanilla frosting, marshmallow cream, plastic trays, plastic wand, printed cards and tray covers, and plastic wrapping film are products of the United States. The marshmallow treat, rainbow sprinkles, and chocolate chips are products of Canada. In Mexico, the foods are portioned and placed into the tray compartments, with the plastic wand, the trays are sealed, the backing card affixed, and two trays are stacked and shrink-wrapped to make one twin pack.

For tariff classification purposes, the Fun Snacks are considered goods put up in sets for retail sale. In accordance with General Rule of Interpretation (GRI) 3(b) the Fun Snacks will be classified as the component which gives them their essential character – the marshmallow treat, cookie, and brownie.

The applicable tariff provision for the Marshmallow Crispy Square Fun Snack will be 1704.90.3550, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for sugar confectionerynot containing cocoaother confections or sweetmeats ready for consumptionotherput up for retail saleother. The general rate of duty will be 5.6 percent ad valorem.

The applicable tariff provision for the Chocolate Chip Cookie Fun Snack will be 1905.30.0049, HTSUSA, which provides for bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoasweet biscuits; waffles and wafersotherother. The rate of duty will be free.

The applicable tariff provision for the Fudge Brownie Fun Snack will be 1905.90.1050, HTSUSA, which provides for bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoaotherbread, pastry, cakes, biscuits and similar baked productswhether or not containing chocolate, fruit, nuts or confectioneryotherpastries, cakes and similar sweet baked products. The rate of duty will be free.

The Marshmallow Crispy Square Fun Snack, being wholly obtained or produced entirely in the territory of the United States, Canada, and Mexico, will meet the requirements of HTSUSA General Note 12(b)(i), and will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

Subheading 9801.00.1097, HTSUSA, provides for the duty-free entry of products of the U.S. that are returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided there has been compliance with the documentary requirements of section 10.1, Customs Regulations (19 C.F.R. §10.1).

In this case, the U.S.-origin cookie, brownie, frostings, marshmallow cream, printed cards, plastic trays, and plastic wands are not advanced in value or improved in condition while abroad. Therefore, when the above-described Fun Snacks are imported, these components will be entitled to duty-free treatment under subheading 9801.00.1097, HTSUSA, assuming compliance with the documentation requirements of 19 C.F.R. §10.1.

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 to 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 134.45(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. 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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported Fun Snacks are goods of the United States and Canada for marking purposes. A good determined to be an article of U.S. origin is not subject to the country of origin marking requirements of 19 U.S.C. §1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the U.S.

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 Stanley Hopard at 212-637-7065.

Sincerely,

Robert B. Swierupski
Director,

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