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NY L80714




December 10, 2004

CLA-2-21:RR:NC:2:228 L80714

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9973

Mr. Jeff Kendall
UPS Supply Chain Solutions
P.O. Box 3549
Blain WA 98231

RE: The tariff classification and country of origin marking of a beverage preparation from Canada.

Dear Mr. Kendall:

In your letter dated November 10, 2004, on behalf of Safeway Inc., you requested a tariff classification ruling.

An ingredients breakdown and a copy of the package labeling were submitted with your letter. The product is a frozen blend of 38.60 percent pineapple juice concentrate, 24.50 percent orange juice concentrate, 19.12 percent water, 17.50 percent banana puree, 0.15 percent lemon juice concentrate, and 0.13 percent ascorbic acid. The concentrate is put up in 12 ounce cans for retail sale. Package instructions direct the purchaser to mix the contents of the can with 36 ounces (3 cans) of water to prepare the finished beverage.

The orange juice concentrate and lemon juice concentrate are products of the United States. The pineapple juice concentrate is a product of Thailand, the banana puree is a product of Ecuador or Costa Rica, and the ascorbic acid is a product of China. In Canada, the ingredients are combined in the noted proportions, packed, and frozen.

The applicable subheading for the Pineapple Orange Banana Juice Concentrate will be 2106.90.9973, Harmonized Tariff Schedule of the United States (HTS), which provides for food preparations not elsewhere specified or included otherotherotherpreparations for the manufacture of beveragesother. The rate of duty will be 6.4 percent ad valorem.

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 Pineapple Orange Banana Juice Concentrate is a good of Canada for marking purposes.

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

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at telephone number (301) 575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

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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