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NY N017882




October 22, 2007

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

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9400

Mr. George Tuttle
George R. Tuttle
One Embarcadero Center
San Francisco, CA 94111-4044

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

Dear Mr. Tuttle:

In your letter dated September 25, 2007, on behalf of Pacific Blends, Inc., Coquitlam, British Columbia, Canada, you requested a ruling on the status of Surimi Cryoprotectant from Canada under the NAFTA.

Surimi Cryoprotectant (“Cryo”) is described as a dry, crystalline material used as an ingredient in the production of surimi, a fish paste product. The Cryo will be prepared in two formulations. Surimi Cryoprotectant Premix A is said to be composed of 86 percent sugar, 7.4 percent sorbitol, 3.3 percent tetrasodium pyrophosphate, and 3.3 percent sodium tripolyphosphate. Surimi Cryoprotectant Premix B is said to be a blend of 71.7 percent sugar, 22.8 percent sorbitol, 2.75 percent tetrasodium pyrophosphate, and 2.75 percent sodium tripolyphosphate.

The blends will be made from raw sugar imported into Canada from Australia, Brazil, Guatemala, or Colombia, sorbitol from an unidentified NAFTA country or from Malaysia or Thailand, and tetrasodium pyrophosphate and sodium tripolyphosphate from the United States or China. The raw sugar will be refined in Canada, blended with the other ingredients according to the prescribed formula, and packed into 25-kilogram units.

In your letter you suggested the surimi cryoprotectants were classified in subheadings 2106.90.9500 and 2106.90.9700, HTS, the in- and over-quota provisions for other food preparations not elsewhere specified or included, containing over 10 percent by dry weight of sugar derived from sugar cane and/or sugar beets. We cannot agree. The surimi cryoprotectants contain over 65 percent, by dry weight, of cane or beet sugar, and are more specifically provided for elsewhere.

The applicable subheading for the Surimi Cryoprotectant Premix A and Surimi Cryoprotectant Premix B will be 2106.90.9400 Harmonized Tariff Schedules of the United States (HTS), which provides for food preparations not elsewhere specified or includedotherotherotherarticles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17 other. The rate of duty will be 28.8 cents per kilogram plus 8.5 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,

Based on the facts provided, the surimi cryoprotectants described above will meet the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.14.

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 Surimi Cryoprotectant Premix A and Surimi Cryoprotectant Premix B are goods of Canada for marking purposes.

Products of Canada, classified in subheading 2106.90.9400, HTS, are not eligible for NAFTA preferential rates of duty.

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, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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