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NY J89614




October 22, 2003

CLA-2-21:RR:NC:2:228 J89614

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9997

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 whipped toppings from Canada; Article 509

Dear Mr. Wilkinson:

In your letter dated October 2, 2003 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 six different flavors, put up for retail sale in aerosol containers. The Hazelnut, White Mocha, Egg Nog, Caramel, and Vanilla-flavored toppings are composed of 80-84 percent water, 9 percent sugar, 7-10 percent whey protein concentrate, 1-2 percent stabilizer, and one percent or less of sodium caseinate and natural and artificial flavors. In addition to these ingredients, the Mocha-flavored topping contains less than one percent cocoa.

The sodium caseinate is a product of Ireland, the cocoa is a product of the Netherlands, 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 tariff provision for the whipped toppings will be 2106.90.9997, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for food preparations not elsewhere specified or included...other...other...other...containing sugar derived from sugar cane and/or sugar beets. The general rate of duty will be 6.4 percent ad valorem.

Each of the non-originating materials used to make the toppings have satisfied the changes in tariff classification required under HTSUSA General Note 12(t)/14. The whipped toppings 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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