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NY N018437





January 11, 2008

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

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9997

Mr. Robert Tinkham
Chicago Sweeteners Incorporated
1700 Higgins Road
Des Plaines, IL 60018

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

Dear Mr. Tinkham:

In your letters dated September 12, 2007 and October 5, 2007 you requested a ruling on the status of three coating material from Canada under the NAFTA. The samples you submitted were forwarded to the Customs and Border Protection laboratory for analysis.

Ingredients breakdowns were submitted with your September letter. “Georgia,” “GM,” and “UC Yogurt” are white-colored solid materials used as coatings for confectionery and nutritional/snack bars. All are composed of sugar, palm kernel oil, skim milk powder, and yogurt powder. Other ingredients include whey powder, maltodextrin, lecithin, vanillin, lactic acid, titanium dioxide, and flavoring. Laboratory analysis found the “Georgia” product contained 55.5 percent sugar, by dry weight, and 6.99 percent milk solids. “UC” contained 47.8 percent sugar and 9.85 percent milk solids, and “GM” contained 49.5 percent sugar and 8.06 percent milk solids.

The sugar is a product of a non-NAFTA country, refined in Canada. The palm kernel oil is a good of Malaysia, the skim milk powder may be a good of the United States, Canada, Australia, or New Zealand, and the whey powder and yogurt powder are goods of the United States. The country of origin of the remaining ingredients was not identified.

The applicable tariff provision for these three products will be 2106.90.9997, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or includedotherotherother containing sugar derived from sugar cane and/or sugar beets. 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; 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 goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b)(ii)(A)/21.14. 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. (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 these three products are goods of Canada for marking purposes.

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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