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NY M86212




October 11, 2006

CLA-2-21:RR:NC:N2:228 M86212

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9400

Mr. Robert Tinkham
Chicago Sweeteners Incorporated
1700 Higgins Road
Des Plaines, IL 60018

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

Dear Mr. Tinkham:

In your letter dated September 7, 2006 you requested a ruling on the status of a food ingredient from Mexico under the NAFTA.

A sample, submitted with your letter, was examined and disposed of. The product, “maple brown sugar seasoning”, is a dry, brown-colored, granular material said to be composed of 90 percent cane or beet sugar and 10 percent of a “premix” consisting of 40 percent salt, and 20 calcium carbonate, 20 percent natural or artificial flavors, and unspecified amounts of gums, colors, acidulants, and vitamins. The product will be imported from Mexico in 50-pound bags or one-ton totes, and used as an ingredient in the production of cereals or baked goods.

The premix will be a product of the United States and the sugar may be a product of Mexico, the United States, or a non-NAFTA country. In Mexico, the two components will be blended according to the prescribed formula, and exported to the United States.

The applicable subheading for this product will be 2106.90.9400 Harmonized Tariff Schedules of the United States (HTS), which provides for food preparations not elsewhere specified or includedotherotherotherarticles 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.

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/.

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 product, when made with sugar of Mexico or non-NAFTA origin, is a good of Mexico for marking purposes. When made using sugar of United States origin, the product is a good 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.

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, 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

Based on the facts provided, the good described above qualifies for NAFTA preferential treatment. When produced from sugar of Mexico or United States origin, it will meet the requirements of HTSUS General Note 12(b)(i), and when produced using sugar from a non-NAFTA country it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.14. The good will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

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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