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NY R03489





April 7, 2006

CLA-2-20:RR:NC:N2:228 R03489

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.19.8500; 2008.92.1040; 2008.92.9094

Ms. Sheri Lawson
Willson International, Inc.
250 Cooper Avenue
Tonawanda, NY 14150

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

Dear Ms. Lawson:

In your letter dated March 17, 2006, on behalf of JohnVince Foods, Downsview, Ontario, Canada, you requested a ruling on the status of snack mixes from Canada under the NAFTA.

Ingredients breakdowns and a description of the manufacturing process for four products was submitted with your letter. The goods are snack mixes composed of a blend of nuts, seeds, dried fruits, and crisp, savory, snack food, put up for retail sale in 500-gram plastic containers. Deluxe Treat Mix is composed of 25 percent each of roasted, unsalted peanuts and roasted, unsalted sunflower seeds, 24 percent Thompson raisins, 10 percent each of roasted, unsalted cashews and raw pumpkin seeds, and 6 percent roasted, unsalted almonds. Manhattan Mix is a blend of 45 percent roasted, salted peanuts, 20 percent each of roasted, salted sunflower seeds, 20 percent sesame sticks, 10 percent roasted, salted cashews, and 5 percent roasted, salted almonds. Youth Mix contains 30 percent roasted, salted peanuts, 20 percent each roasted, salted sunflower seeds and 20 percent Sultana raisins, 10 percent sesame sticks, and 5 percent each of pecans, pumpkin seeds, roasted, salted almonds and roasted, salted cashews. Vanilla Nut & Cranberry Trail Mix is composed of 45 percent vanilla roasted peanuts, 30 percent Thompson raisins, 15 percent sweetened, dried cranberries, and 10 percent roasted, unsalted cashews.

The peanuts (blanched peanuts in the Deluxe Treat Mix, raw peanuts in all others), almonds, sunflower seeds, sesame sticks, pecans, and cranberries are products of the United States, pumpkin seeds are products of China, Thompson raisins are products of Chile, Sultana raisins are goods of Australia, and the cashews may be goods of Vietnam, India, or Brazil. In Canada, the peanuts, sunflower seeds, cashews, and almonds are roasted, roasted and salted, or flavored and coated, and then mixed with the remaining ingredients. The Thompson raisins, Sultana raisins, pumpkin seeds, sesame sticks, cranberries, and pecan pieces are mixed with the other ingredients without additional processing in Canada.

The applicable tariff provision for the Deluxe Treat Mix, Manhattan Mix, and Youth Mix will be 2008.19.8500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preservednuts, peanuts (ground nuts) and other seeds, whether or not mixed togetherother, including mixturesmixtures. The general rate of duty will be 22.4 percent ad valorem.

The applicable tariff provision for the Vanilla Nut & Cranberry Trail Mix, when in an airtight container, will be 2008.92.1040, HTSUS, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preservedother, including mixtures other than those of subheading 2008.19mixturesin airtight containers and not containing apricots, citrus fruits, peaches or pearsother. The general rate of duty will be 5.6 percent ad valorem.

When in not in airtight containers, the applicable subheading for the Vanilla Nut & Cranberry Trail Mix will be 2008.92.9094, HTSUS, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preservedother, including mixtures other than those of subheading 2008.19mixturesother otherother. The general rate of duty will be 14.9 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. § 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 goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b)(ii)(B) and 12(t)/20.4. 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 Manhattan Mix and Youth Mix are goods of Canada for marking purposes. The Deluxe Treat Mix and Vanilla Nut & Cranberry Trail Mixes 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.

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 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 Stanley Hopard at 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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