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NY N010361




May 2, 2007

CLA-2-18:RR:NC:N2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 1806.90.9090; 1901.90.9095

Ms. Carolyn Leski
BCB International, Inc.
1010 Niagara Street
Buffalo, NY 14213-1501

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

Dear Ms. Leski:

In your letter dated April 19, 2007 you requested a ruling on the status and country of origin marking of a food product from Canada under the NAFTA.

Ingredients breakdowns and illustrations of the packaging accompanied your letter. Breakfast in an Instant is a human food preparation in powder form, prepared in three flavors (chocolate, strawberry, and vanilla), put up for retail sale in pouches containing 36 grams, five pouches in a box. Ingredients common to all flavors are whey (approximately 39 to 42 percent), fructose (25 to 28 percent), maltodextrin (14 to 17 percent), sugar (8.3 percent), a vitamin premix (4.8 percent), and less than one percent, each, of vegetable gum and vanillin. In addition, the strawberry flavored product contains flavor and color, and the chocolate flavored product contains approximately 8 percent cocoa. Package instructions direct the user to add the contents of a pouch to 8 ounces of milk to create a breakfast drink.

The whey and vitamin premix are products of Canada. Fructose, maltodextrin, vegetable gum, vanillin, flavor, and color are goods of the United States. The sugar is refined in Canada from cane sugar originating in non-NAFTA countries, and the cocoa powder is imported into Canada from a non-NAFTA country. In Canada, all ingredients are blended according to the prescribed formulas, and packaged for retail sale.

In your letter, you suggested all three products should be classified in subheading 1901.90.9095, Harmonized Tariff Schedule of the United States (HTSUS). We agree with your proposed classification for the strawberry and vanilla-flavored products. Based on the ingredient composition of the chocolate-flavored product, it must be classified elsewhere.

The applicable tariff provision for the chocolate-flavored Breakfast in an Instant will be 1806.90.9090, HTSUS, which provides for chocolate and other food preparations containing cocoaotherotherother. The general rate of duty will be 6 percent ad valorem.

The applicable tariff provision for the strawberry and vanilla-flavored Breakfast in an Instant will be 1901.90.9095, HTSUS, which provides for food preparations of goods of heading 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or includedotherotherother. The general rate of duty will be 6.4 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

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)(A), 12(t)/18.5, and 12(t)/19.6. 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.

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 Breakfast in an Instant products are goods of Canada for marking purposes.

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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