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NY N011839




June 11, 2007

CLA-2-19:RR:NC:2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.9095

Ms. Marjorie M. Chisholm
Maidstone Bakeries
115 Sinclair Blvd.
Brantford, Ontario
Canada N3S 7X6

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of frozen, unbaked, filled pastries from Canada; Article 509

Dear Ms. Chisholm:

In your letter dated May 22, 2007, you requested a ruling on the status of frozen, unbaked, filled pastries from Canada under the NAFTA.

Ingredients breakdowns and a picture were submitted with your letter. The products are frozen, pre-proofed, unbaked, filled pastries containing a cream cheese filling, or a combination of a cream cheese and fruit filling. The pastries are composed of flour, water, yeast, sugar, “improver”; salt, milk powder, vegetable shortening, and egg. They are filled with cream cheese, or cream cheese and blueberry, cherry, or apple. Each contains between 7.8 and 8.2 percent sugar, by dry weight, and 1.5 percent butterfat. The pre-formed pastries will be imported in non-retail packaging, intended for food service use. The country of origin of all of the ingredients is Canada with the exception of the sugar (cane), a product of Brazil.

The applicable subheading for the frozen, unbaked, filled pastries will be 1901.90.9095, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included otherotherother. The general rate of duty will be 6.4 percent ad valorem.

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

(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

Based on the facts provided, the pre-proofed, unbaked, frozen, filled pastries described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b)(ii)(A), 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.

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).

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

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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