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NY I89526




January 15, 2003

CLA-2-19:RR:NC:2:228 I89526

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.4600; 1901.90.4700

Mr. Jeffrey Wilkinson
Simply Sublime Foods
1280 Olive Drive
Davis, CA 95616

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of a whipped topping from Canada; Article 509

Dear Mr. Wilkinson:

In your letter dated December 15, 2002 you requested a ruling on the status of whipped toppings from Canada under the NAFTA.

Ingredients breakdowns and a sample of the product label were submitted with your letter. Crema Italia! brand Cappuccino Foam is a topping for hot beverages, in three different flavors, put up for retail sale in aerosol containers. The French Vanilla and Hazelnut-flavored toppings are composed of 61 percent water, 25 percent fat free milk, 5.5 percent each of sugar and whey protein concentrate, 2 percent almond flour, and less than one percent each of carrageenan and flavors. The Mocha flavored topping consists of 56.5 percent water, 25 percent fat free milk, 5.5 percent each of sugar and whey protein concentrate, 4.5 percent cocoa, 2 percent peanut flour, and less than one percent each of carrageenan and flavors.

The carrageenan is a product of Denmark, the cocoa is a good of Cote d’Ivoire, and the sugar may originate in Australia, Brazil, Guatemala, or Costa Rica. All other ingredients are products of The United States or Canada. In Canada, the ingredients are blended, pasteurized, and filled into pressurized aerosol cans.

The applicable subheading for these whipped toppings, if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 1901.90.4600, Harmonized Tariff Schedule of the United States (HTS), which provides for food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or includedotherdairy products described in additional U.S. note 1 to chapter 4otherdescribed in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 16 percent ad valorem. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the products will be classified in subheading 1901.90.4700, HTS, and dutiable at the rate of $1.035 per kilogram plus 13.6 percent ad valorem.

Each of the non-originating materials used to make the toppings has satisfied the changes in tariff classification required under HTSUSA General Note 12(t)/19.6. The toppings, when classified in subheading 1901.90.4600, HTSUSA, will be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides, in general, that all articles of foreign origin imported into the United States must be legibly, conspicuously, and permanently marked to indicate the English name of the country of origin to an ultimate purchaser in the United States. The implementing regulations to 19 U.S.C. 1304 are set forth in Part 134, Customs Regulations (CFR Part 134). The sample product label you have submitted does not appear to be properly marked with the country of origin. You may wish to discuss the matter of country of origin marking with the Customs import specialist at the proposed port of entry.

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 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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