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NY L80153




October 28, 2004

CLA-2-21:RR:NC:2:228 L80153

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9400; 2106.90.9700

Ms. Shirley Coffield
Coffieldlaw
666 Eleventh Street, N.W.
Washington, DC 20001

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

Dear Ms. Coffield:

In your letter dated October 4, 2004, on behalf of Streamline Foods, Inc., West Bloomfield, MI, you requested a ruling on the status of sweeteners from Mexico under the NAFTA.

Three products are described in your letter. All are dry products containing sugar and one or more high intensity sweeteners. Product 1 is said to be composed of 99.7 percent sugar and 0.3 percent sucralose. Product 2 consists of 99 percent sugar and one percent aspartame or acesulfame-potassium. Product 3 is a blend of approximately 63 percent sugar, 36 percent maltodextrin, and one percent sucralose, aspartame, or acesulfame-potassium. The sugar and maltodextrin ingredients will be products of the United States or Mexico, the sucralose will be a product of the United States, the aspartame will be a good of the United States or an unnamed, non-NAFTA country, and the acesulfame-potassium will be a product of an unidentified non-NAFTA country. In Mexico, the ingredients will be blended according to the prescribed formulation, and packaged in one metric ton totes for sale to industrial manufacturers, or in smaller packages for sale to the retail consumer.

The applicable subheading for sweetener product 1 and product 2, when imported in non-retail packing, will be 2106.90.9400, Harmonized Tariff Schedules of the United States (HTS), which provides for food preparations not elsewhere specified or includedotherotherarticles 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.

The applicable subheading for sweetener product 1 and product 2, when in retail packing, and for sweetener product 3, will be 2106.90.9700 HTS, which provides for food preparations not elsewhere specified or included other otherarticles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17other. 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. § 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, the goods described above qualify for NAFTA preferential treatment. Product 1, and products 2 and 3, when made with sucralose and/or aspartame of United States origin, will meet the requirements of HTSUSA General Note 12(b)(i). Products 2 and 3, when made with acesulfame-potassium and/or with aspartame from a non-NAFTA country, will meet the requirements of HTSUSA General Note 12(b)(ii)(A). The goods will therefore 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 sweetener products 1 and 2, when made using sugar of Mexican origin, are goods of Mexico for marking purposes. When made using sugar of United States origin, products 1 and 2 are goods of the United States 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.

Your inquiry does not provide enough information for us to give a country of origin marking ruling on sweetener product 3. Your request for a country of origin marking ruling for this product should include the dextrose equivalent (DE) of the maltodextrin. When this information is available, you may wish to consider resubmission of your request.

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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