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NY N026440




May 1, 2008

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

CATEGORY: CLASSIFICATION

TARIFF NO.: 2103.90.7400; 2103.90.7800

Ms. Tanis Johnson
Newly Weds Foods Co.
450 Superior Blvd.
Mississauga, Ontario L5T 2R9 Canada

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

Dear Ms. Johnson:

In your letters dated April 10, April 15, April 23, and April 29, 2008, you requested a ruling on the status of a food product from Canada under the NAFTA.

An ingredients breakdown was submitted with your first letter and a sample accompanied your April 15th letter. Additional information concerning the product’s use and the origin of certain ingredients was provided with your last two letters. The sample was examined and disposed of. Virginia Ham Rub is a gray-colored, granular material said to be composed of approximately 48 percent sugar, 20 percent gelatin, 10 percent each of starch, dextrose monohydrate, and caramel color, and less than one percent each of salt, vegetable oil, paprika, clove leaf oil, sherry wine flavor, and allspice oleo. It will be imported in containers holding approximately 23 kilograms and will be applied directly to the surface of ham, to “cure” the meat.

The sugar, dextrose monohydrate, starch, salt, and allspice oleo will be products of Canada. The vegetable oil, caramel color, and sherry wine flavor will be products of the United States. The gelatin will be a product of the United States and Brazil, the paprika will be a product of Spain, and the clove leaf oil will be a product of Indonesia. In Canada, all ingredients will be mixed in the prescribed proportions and packaged.

The applicable subheading for this product, if imported in quantities that fall within the limits described in additional U.S. note 4 to chapter 21, will be 2103.90.7400, Harmonized Tariff Schedule of the United States (HTSUS), which provides for mixed condiments and mixed seasonings described in additional U.S. note 3 to this chapter...described in additional U.S. note 4 to this chapter and entered pursuant to its provisions. The rate of duty will be 7.5 percent ad valorem . If the quantitative limits of additional U.S. note 4 to chapter 21 have been reached, the product will be classified in subheading 2103.90.7800 HTS, and dutiable at the rate of 30.5 cents per kilogram plus 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 product described above, when classified in subheading 2103.90.7400, HTSUS, qualifies for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.7A(A). The good 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 the imported fresh ham rub described above is a good 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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