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NY J87619




August 4, 2003

CLA-2-19:RR:NC:2:228 J87619

CATEGORY: CLASSIFICATION

TARIFF NO.: 1905.32.0041; 1905.32.0049

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

RE: The tariff classification and country of origin marking for biscuit products from Canada; Article 509

Dear Mr. Boyer:

In your letters dated May 1, 2003 and July 17, 2003 you requested a ruling on the status of biscuit products from Canada under the NAFTA.

Samples and ingredients breakdowns for five products were submitted with your first letter. Additional information concerning the ingredients and the manufacturing process was submitted with your July letter. The samples were examined and disposed of. Biscos® Sugar Wafers and Biscos® Waffle Crèmes consist of two flat, waffle-patterned, baked wafers with a sweet crème filling. Nutter Butter® Crème Patties are trapezoid-shaped wafers filled with a peanut butter crème. The Nutter Butter® Wafer Sticks consist of three flat wafers separating two peanut butter crème layers, enrobed in chocolate, and the Oreo® Wafer Sticks are composed of two wafers with a crème filling, enrobed in chocolate. Ingredients common to all products are flour, sugar, vegetable oil, salt, and baking soda. Other ingredients, depending on the product, are peanut butter, corn starch, whey, dextrose, lecithin, chocolate, flavor, and color.

The peanut butter and flavoring ingredients used to make the goods are products of the United States. All other ingredients are products of Canada. In Canada, the wafer ingredients are blended to form a batter, which is then baked between hot plates to create the wafer shells. The crème ingredients are blended together and spread onto the baked shells.

The applicable tariff provision for the Nutter Butter® Crème Patties and the Nutter Butter® Wafer Sticks will be 1905.32.0041, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoasweet biscuits; waffles and waferswaffles and wafersothercontaining peanuts or peanut products. The general rate of duty will be free

The applicable tariff provision for the Biscos® Sugar Wafers, Biscos® Waffle Crèmes, and Oreo® Wafer Sticks will be 1905.32.0049, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoasweet biscuits; waffles and waferswaffles and wafersother other. The general rate of duty will be free.

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 Biscos® Sugar Wafers, Biscos® Waffle Crèmes, Nutter Butter® Crème Patties, Nutter Butter® Wafer Sticks, and Oreo® Wafer Sticks are goods of Canada for marking purposes.

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

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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