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NY J85787




June 20, 2003

CLA-2-19:RR:NC:2:228 J85787

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.5600; 1901.90.5800; 9801.00.1097

Mr. William Sherman
Northern Customs Services
P.O. Box 331
Lewiston, NY 14092

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

Dear Mr. Sherman:

In your letters dated May 13, 2003 and June 11, 2003, on behalf of Linsey Foods Ltd., Markham, Ontario, Canada, you requested a ruling on the status of a dessert kit from Canada under the NAFTA.

Descriptive literature and an ingredients breakdown for one of the components of the kit were submitted with your June letter. The product, Et Tu Caesar brand Apple Crisp Dessert Kit consists of a 235-gram package of crumble topping blend and a 15-gram package of raisins, put up for retail sale. The purchaser of the kit adds butter and fresh apples to prepare the apple crisp dessert. The crumble blend is said to be composed of approximately 47 percent brown sugar, 32 percent wheat flour, 19 percent rolled oats, one percent each of sugar and spices, and less than one percent canola oil.

The crumble blend is produced and packaged in the United States. The raisins may be goods of the United States or South Africa, exported to Canada in bulk, where they are placed into the small packages and then placed into the dessert kit, along with the crumble blend package.

The applicable subheading for the Apple Crisp Dessert Kit, if imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 17, will be 1901.90.5600 Harmonized Tariff Schedules of the United States (HTS), which provides for food preparations of flour, groats, meal, starch or malt extractotherotherarticles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17 described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. The rate of duty will be 10 percent ad valorem. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, the product will be classified in subheading 1901.58.0000, HTS, and dutiable at the rate of 23.7 cents per kilogram plus 8.5 percent ad valorem. In addition, products classified in subheading 1901.90.5800, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.17.49 to 9904.17.56, HTS

When classified in subheading 1901.56.0000, HTS, and made with raisins of United States origin, the Apple Crisp Dessert Kit, being wholly obtained or produced entirely in the territory of the United States and 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 classified in subheading 1901.56.0000, HTS, and made with raisins of South African origin, the non-originating material used to make the Apple Crisp Dessert Kit will have satisfied the change in tariff classification required under HTSUSA General Note 12(t)/19.6. The Apple Crisp Dessert Kit will be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

The crumble blend and raisins, when products of the United States, may be eligible for entry as American Goods Returned. If the documentary requirements of 19 C.F.R. §10.1 are satisfied, the applicable subheading for these items will be 9801.00.1097, HTS, which provides for products of the United States when 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...other...other. Products classified in subheading 9801.00.1097, HTS, are free of duty.

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 134.1(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.

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 Apple Crisp Dessert Kit, when made with raisins of United States origin, is a good of the United States for marking purposes. When made with raisins of South Africa origin, the Apple Crisp Dessert Kit is a good of the United States and South Africa for marking purposes.

If a good is determined to be an article of U.S. origin, it 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 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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