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NY K85572




July 8, 2004

CLA-2-21:RR:NC:2:228 K85572

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9400

Mr. Graeme Honeyfield
Glinso Foods
3554 Round Barn Blvd.
Santa Rosa, CA 95403

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of a flavored syrup from Mexico; Article 509

Dear Mr. Honeyfield:

In your letters dated April 2, 2004 and April 28, 2004 you requested a ruling on the status of a flavored syrup from Mexico under the NAFTA.

A sample, submitted with your first letter, was forwarded to the Customs laboratory for analysis. The product, identified as SF 9955 Syrup, is a viscous liquid with a strawberry aroma, said to be composed of 68 percent refined cane or beet sugar, 31.6 percent water, and less than one percent strawberry flavoring. Laboratory analysis found the sample contained over 95 percent cane sugar, by dry weight. The syrup will be imported in 20-kilogram pails, 55-gallon drums, and 1000-kilogram bulk containers.

The strawberry flavoring may be a product of the United States or Mexico. The sugar may be grown and refined in the United States or Mexico, or it may be refined in the United States, Canada, or Mexico, from raw sugar imported from a non-NAFTA country. In Mexico, the ingredients will be blended according to the prescribed formula and packaged.

The applicable subheading for this product, SF 9955 Syrup, will be 2106.90.9400 Harmonized Tariff Schedules of the United States (HTS), which provides for food preparations not elsewhere specified or includedotherother otherarticles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17 other. The rate of duty will be 28.8 cents per kilogram plus 8.5 percent ad valorem.

General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. ยง 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein

Based on the facts provided, SF 9955 Syrup qualifies for NAFTA preferential treatment. When made using sugar grown and refined in the United States or Mexico, it will meet the requirements of HTSUSA General Note 12(b)(i). When made using raw sugar from a non-NAFTA country, refined in the United States, Canada, or Mexico it will meet the requirements of HTSUSA General Note 12(b)(ii)(A) and 12(t)/21.14. The syrup 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 134.1(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 syrup, when made using sugar grown and refined in Mexico, or using raw sugar from a non-NAFTA country refined in Mexico, Canada, or the United States, is a good of Mexico for marking purposes. When made using sugar grown and refined in the United States, the syrup is a good of the United States for marking purposes.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 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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