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NY N019252




November 27, 2007

CLA-2-2:OT:RR:E:NC:2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9400, 2106.90.9500, 2106.90.9700

Ms. Julie L. Dreke
Cargill Incorporated
15407 Mc Ginty Road West
Wayzata, MN 55391

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

Dear Ms. Dreke:

In your letters dated October 2, 2007 and October 31, 2007, you requested a ruling on the status of food ingredients from Canada under the NAFTA.

Ingredients breakdown accompanied your first letter. Country of origin information and chemical breakdowns were submitted with your second letter. The first item, described as apple chunk, consists of approximately 67 percent sugar, 32 percent vegetable oil, and less than one percent each of skim milk powder, sodium citrate, malic acid, citric acid, apple flavoring, coloring and lecithin. The second item, cherry chunk, consists of approximately 59 percent sugar, 34 percent vegetable oil, 6 percent whole milk powder, and less than one percent each of salt, lecithin, cherry powder, and cherry flavor. The sodium citrate, citric acid, cherry powder, cherry flavor, and salt are products of the United States. The milk, malic acid, apple flavor, and lecithin are products of Canada. The apple color is a product of Brazil, the sugar is from various non-NAFTA countries, and the vegetable oil is from Malaysia. In Canada, the ingredients are blended, cut into chunks measuring approximately 7mm x 5mm x 3mm pieces, and packed into 15-kg plastic-lined boxes. The apple and cherry chunks are used as ingredients in the manufacture of bakery products such as bread mix, bagel mix, or cookie mix.

The applicable subheading for the apple chunk will be 2106.90.9400 Harmonized Tariff Schedules of the United States (HTSUS), which provides for food preparations not elsewhere specified or includedotherother otherarticles 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.

The applicable subheading for the cherry chunk, if imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 17, will be 2106.90.9500 HTSUS, which provides for food preparations not elsewhere specified or includedother otherarticles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17 described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. The rate of duty will be 10 percent ad valorem. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, the product will be classified in subheading 2106.90.9700, HTSUS, and dutiable at the rate of 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. 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,

Based on the facts provided, the cherry chunk product described above qualifies for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.14. It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

The apple chunk product, a product of Canada, classified in subheading 2106.90.9400, HTSUS, is not eligible for NAFTA preferential treatment.

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).

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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