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NY N004154




December 28, 2006

CLA-2-09:RR:NC:SP:232

CATEGORY: CLASSIFICATION

TARIFF NO.: 0903.00.0000

Ms. Pamela Johnson
Starbucks Coffee Company
PO Box 34067
Seattle, WA 98124-1067

RE: The tariff classification of Tropic Mate from Canada

Dear Ms. Johnson:

In your letter dated November 30, 2006, you requested a tariff classification ruling. Your request also asks for the country of origin for marking purposes of the product.

Yerba Mate grown in Brazil is shipped to the United States. In the U. S., the mate is blended together with natural flavors (cherimoya fruit and apple), using a mechanical blender. The resulting bulk product is called Tropic Mate. The bulk Tropic Mate is exported to Canada, where it is packaged into filter bags and retail cartons. The packaged mate blend is re-imported into the United States for sale at Starbucks retail stores and at grocery stores.

The applicable subheading for the Tropic Mate will be 0903.00.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Mate. The rate of duty will be free.

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.

The country of origin for marking purposes is defined at section 19 CFR 134.1(b), to mean 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 the meaning of Part 134. A substantial transformation is effected when a manufacturer or processor converts or combines an article into a new and different article resulting in a change in name, character, or use.

In this case, the mate has not been substantially transformed in the United States, as a result of simply blending and flavoring through the addition of the cherimoya and apple flavor. The Tropic Mate remains a product of the countries, which produced the mate for country of origin marking.

In the scenario where the bulk mate is repacked in Canada, your inquiry also requests a ruling on the country of origin marking requirements for an imported article, which is processed in a NAFTA country prior to being imported into the U.S.

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.

You state that the Tropic Mate is processed in a NAFTA country "Canada" prior to being re-imported into the U.S. Since, "Canada" is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported Tropic Mate is a good of a NAFTA country, and thus subject to the NAFTA marking requirements.

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 Tropic Mate remains a good of the countries which produced the Yerba Mate, for marking purposes, noting the requirements of Section 102.17 (c).

Section 14 of the Miscellaneous Trade and Technical Corrections Act of 1996, Pub. L. 104-295, 110 Stat. 3514 (October 11, 1996) amended the country of origin marking statute (19 U.S.C. 1304) to exempt imports of certain specified coffee, tea and spices from the marking requirements of 19 U.S.C. 1304 subsections (a) and (b). The Yerba Mate is not among the products included in this statutory marking exemption. Therefore, the Tropic Mate and its containers are required to be marked with the foreign country of origin.

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 Parts 177 and 181 of the Customs Regulations (19 C.F.R. 177, 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 Paul Hodgkiss at 646-733-3031.

Sincerely,

Robert B. Swierupski
Director,

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