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NY M80189




February 22, 2006

CLA-2-17:RR:NC:SP:232 M80189

CATEGORY: CLASSIFICATION

TARIFF NO.: 1704.10.0000; 1704.90.3550

Ms. Helen I Sugar
BCB International Inc.
1010 Niagara Street
Buffalo, NY 14213-1501

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of SMARTIES candy and gum from Canada; Article 509

Dear Ms. Sugar:

In your letter dated January 25, 2006, on behalf of Ce De Candy Company Ltd., you requested a ruling on the status of SMARTIES candy and gum from Canada under the NAFTA.

Information and samples were submitted with your initial request dated November 30, 2005. The subject merchandise consists of five products: Item 268 SMARTIES, Item 204 X-Treme Sour SMARTIES, Item 203 Tropical SMARTIES, Item 100B SMARTIES Candy Money Rolls and SMARTIES Bubble Gum. The SMARTIES, X-Treme Sour SMARTIES, Tropical SMARTIES, and SMARTIES Candy Money Rolls are all produced in Canada and contain various quantities of dextrose, citric acid, flavors, colors, etc. The SMARTIES Bubble Gum contains sugar, gum base, citric acid, flavors, colors, etc. It is produced in China, shipped in bulk to the United States, and then part of the shipment is sent to Canada to be combined with the other four SMARTIES products in four pound plastic bags. The four pound plastic bags, which contain approximately 20 percent of each type of product, are shipped to the United States. They are sold at retail in Target Stores.

The applicable subheading for the SMARTIES Bubble Gum will be 1704.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for Sugar confectionery (including white chocolate), not containing cocoa: Chewing gum, whether or not sugar-coated. The general rate of duty will be 4 percent ad valorem.

The applicable subheading for the SMARTIES, X-Treme Sour SMARTIES, Tropical SMARTIES, and SMARTIES Candy Money Rolls will be 1704.90.3550, Harmonized Tariff Schedule of the United States (HTS), which provides for Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other...Put up for retail sale: Other. The general rate of duty will be 5.6 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

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; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or

(iv) they are produced entirely in the territory of Canada, Mexico and/or the United States but one or more of the nonoriginating materials falling under provisions for "parts" and used in the production of such goods does not undergo a change in tariff classification because--

(A) the goods were imported into the territory of Canada, Mexico and/or the United States in unassembled or disassembled form but were classified as assembled goods pursuant to general rule of interpretation 2(a), or

(B) the tariff headings for such goods provide for and specifically describe both the goods themselves and their parts and is not further divided into subheadings, or the subheadings for such goods provide for and specifically describe both the goods themselves and their parts,
provided that such goods do not fall under chapters 61 through 63, inclusive, of the tariff schedule, and provided further that the regional value content of such goods, determined in accordance with subdivision (c) of this note, is not less than 60 percent where the transaction value method is used, or is not less than 50 percent where the net cost method is used, and such goods satisfy all other applicable provisions of this note.

Based on the facts provided, the SMARTIES, X-Treme Sour SMARTIES, Tropical SMARTIES, and SMARTIES Candy Money Rolls described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b)(i). 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 SMARTIES Bubble Gum does not qualify for preferential treatment under the NAFTA because none of the above requirements are met.

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).

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 John Maria at 646-733-3031.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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