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NY J82878




April 14, 2003

CLA-2-21:RR:NC:2:228 J82878

CATEGORY: CLASSIFICATION

TARIFF NO.: 2103.90.9091

Mr. David Dunbar
KMZ Rosenman
525 West Monroe Street
Suite 1600
Chicago, IL 60661-3693

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

Dear Mr. Dunbar:

In your letter dated March 26, 2003, on behalf of Kerry Inc. Beloit, WI, you requested a ruling on the status of a sauce preparation from Canada under the NAFTA.

An ingredients breakdown was submitted with your letter. Cheddar Cheese Sauce Base is composed from 63-67 percent cheddar cheese, 11-14 percent partially hydrogenated soybean oil, 8-15 percent moisture, 6.5-8.5 percent whey protein concentrate, nonfat dry milk and/or buttermilk powder, 3-5 percent salt, 1.5-3.5 percent sodium citrate or disodium phosphate, less than 2 percent each of lactic acid, sodium hexametaphosphate, and natural flavor.

Each ingredient may be a product of the United States or Canada. They may also be sourced from other countries. The cheddar cheese, whey protein concentrate, non-fat dry milk, and buttermilk powder may be products of New Zealand, Australia, Argentina, Ireland, the United Kingdom, or Germany. The sodium citrate, disodium phosphate, and sodium hexametaphosphate may be products of Germany. The lactic acid may be a product of Spain.

The applicable tariff provision for the Cheddar Cheese Sauce Base will be 2103.90.9091, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for sauces and preparations thereforotherotherotherother. The general rate of duty will be 6.4 percent ad valorem.

The Cheddar Cheese Sauce Base, when produced in Canada entirely from ingredients whose origin is the United States and/or Canada, 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.

When produced from ingredients of the United States or Canadian origin and non-originating ingredients, each of the non-originating materials will satisfy the changes in tariff classification required under HTSUSA General Note 12(t)/21.7, and the Cheddar Cheese Sauce Base will be entitled to a free 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 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 Cheddar Cheese Sauce Base is a good of Canada for marking purposes.

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,
National Commodity

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