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NY N012398




July 3, 2007

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

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9998

Ms. Andrea Abraham
Meeks & Sheppard
1735 Post Road
Fairfield, CT 06824

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

Dear Ms. Abraham:

In your letter dated June 6, 2007, on behalf of McNeil Nutritionals, LLC, Fort Washington, PA, you requested a ruling on the status of a sweetener from Canada under the NAFTA.

Additional information was submitted via facsimile transmission on June 20, 2007 and by email on June 21, 2007. The product, “Splenda® café sticks” is a dry, granular product said to be composed of approximately one percent sucralose and 99 percent Dexstar™, an agglomeration of dextrose and maltodextrin. The sucralose and Dexstar™ are products of the United States, exported to Canada, blended according to a prescribed formula, and packed into individual packets and other, larger containers for retail sale.

In your letter, you suggested the Splenda® café sticks should be classified in subheadings 2106.90.9500 and 2106.90.9700, Harmonized Tariff Schedule of the United States (HTSUS), the in- and over-quota subheadings for other food preparations not elsewhere specified or included, containing over 10 percent by dry weight of sugars derived from sugar cane and/or sugar beets. We cannot agree. The Splenda® café sticks do not contain sugar derived from sugar cane or sugar beets. They will be classified elsewhere.

The applicable tariff provision for the Splenda® café sticks will be 2106.90.9998, HTSUS, which provides for food preparations not elsewhere specified or includedotherother other. 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. § 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, 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; or

In your letter, you suggested the Splenda® café sticks would be entitled to duty free treatment under the NAFTA on the basis of General Note 12(b)(iii). We agree with your conclusion but not with your analysis. Based on the facts provided, the Splenda® café sticks described above qualify for NAFTA preferential treatment because they will meet the requirements of HTSUS General Note 12(b)(i), and 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.

In your letter, you suggested the Splenda® café sticks would be products of the United States for country of origin marking purposes. We do not agree. Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the non-Canadian components of the imported Splenda® café sticks undergo the applicable change in tariff classification set out in section 102.20 of the regulations. The Splenda® café sticks are therefore 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.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Bureau of Customs and Border Protection, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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