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NY J89931




November 19, 2003
CLA-2-21:RR:NC:2:231 J89931

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 2105.00.5000

Mr. Joseph Brogan
UPS Trade Management Services
12380 Morris Road
Alpharetta, GA 30005

RE: The tariff classification and country of origin marking under the North American Free Trade Agreement (NAFTA) of flavored, frozen, soy-based desserts from Canada; Article 509

Dear Mr. Brogan:

In your letter, dated October 2, 2003, on behalf of your client, Safeway, Inc., Winnipeg, Manitoba, you requested a ruling on the tariff classification and country of origin marking of soy frozen desserts from Canada under the NAFTA.

These frozen desserts will be imported in four flavors and will be imported in cylindrical cardboard containers holding 946 ml (c. 1 quart) each, net. All of these products will contain water, sucrose, glucose, soy base (isolated soy protein, corn syrup solids, sugar, maltodextrin, tricalcium phosphate and salt), partially hydrogenated soybean oil, mono- and diglycerides, stabilizer (cellulose gel, guar gum , modified cellulose and xanthum gum), as well as artificial flavor. Additionally, two items will contain a small quantity of artificial color. The four flavors, with special flavoring ingredients, will include:

1. “Forest Berry Soy Frozen Dessert,” with fieldberry fruit base (sugar, water, blueberries, strawberries, raspberries, modified corn starch, natural flavoring, and blackberries). 2. “Berry Chocolate Amaretto Soy Frozen Dessert,” with cherries (cherries, water, corn syrup, sugar, citric acid, sodium benzoate, potassium sorbate, artificial flavoring, natural flavoring, artificial coloring, and sulfur dioxide) and cocoa powder. 3. “Vanilla Almond Honey Soy Frozen Desert,” with almonds.

In your correspondence you indicate that with one exception, all of the ingredients that are used to produce the flavorings and soy mix will originate either in Canada or the United States. The only ingredient not produced in Canada or the United States is the cocoa powder (which is imported from Europe). The cocoa powder is used only in the chocolate soy mix that is used to produce the Berry Chocolate Amaretto Soy Frozen Dessert (item 2 above). The manufacture of the four products will be done in Canada.

These flavored, soy-based desserts have the appearance of ice cream and, in fact, appear to be sold as lactose free and cholesterol free ice cream substitutes. Like ice cream, these products will melt, if left out at room temperature.

Accordingly, the applicable subheading for these frozen dessert products will be 2105.00.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for ice cream and other edible ice, whether or not containing cocoa, other, other. The general rate of duty will be 17 percent ad valorem.

You requested a NAFTA origin determination.

The . “Forest Berry Soy Frozen Dessert,” “Vanilla Almond Honey Soy Frozen Desert,” and “Vanilla Soy,” being made entirely in the territory of Canada using materials which themselves were originating, will satisfy the requirements of HTSUSA General Note 12(b)(iii). The merchandise will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

Each of the non-originating materials (i.e., the cocoa powder) used to make the “Berry Chocolate Amaretto Soy Frozen Dessert” has satisfied the changes in tariff classification required under HTSUSA General Note 12(t)/21.9. The “Berry Chocolate Amaretto Soy Frozen Dessert,” will be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

For marking, country of origin purposes, these goods should be marked, “Product of Canada.”

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR 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 Thomas Brady at (646) 733-3030.

Sincerely,

Robert B. Swierupski
Director

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