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NY L83858




April 14, 2005

CLA-2-21:RR:NC:2:228 L83858

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.8200

Ms. Heather Marcaccini
Cargill, Inc.
P.O. Box 5626
Minneapolis, MN 55440-5626

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of confectionery coatings from Canada; Article 509. Correction to Customs ruling no. R01390.

Dear Ms. Marcaccini:

This ruling is being issued to correct Customs Ruling No. NY R01390, dated February 16, 2005. The ruling letter omitted the relevant text of HTSUSA General Note 12(b) and contained a typographical error in the citation of the part of that note under which the goods qualify for NAFTA preferential treatment. A complete corrected ruling follows.

In your letter dated February 4, 2005, you requested a ruling on the status of confectionery coatings from Canada under the NAFTA.

Ingredients breakdowns and a description of the manufacturing process were submitted with your letter. The products are described as confectionary coatings in six different colors. Each coating consists of approximately 55 percent sugar, 30 percent palm kernel oil (partially hydrogenated), 8 percent non fat milk powder, 7 percent whole milk powder, and less than one percent each of lecithin, vanillin, salt, and coloring. The sugar will be a product of the Philippines and Costa Rica, the palm kernel oil is from Malaysia, and the milk powders, color, lecithin, flavor, and salt are from Canada. In Canada the sugar is mixed with the other ingredients, cooled, broken or cut into pieces, and imported into the United States in bulk form.

The applicable subheading for the coatings will be 2106.90.8200, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for food preparations not elsewhere specified or includedothercontaining over 10 percent by weight of milk solidsotherother. The general rate of duty will be 6.4 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, or

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note

Based on the facts provided, the products described above qualifies for NAFTA preferential treatment, because it will meet the requirements of HTSUSA General Note 12(b)(ii)(A) and Note 12(t)/21.12. The coatings will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

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 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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