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

N014021 July 23, 2007 CLA-2-21:RR:E:NC:N2:228 CATEGORY: Classification TARIFF NO.: 2106.90.9400 Mr. Stuart Seidel Baker & McKenzie LLP 815 Connecticut Avenue NW Washington, DC 20006 RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of a food ingredient from Mexico and Canada; Article 509 Dear Mr. Seidel: In your letter dated July 10, 2007, on behalf of H.J. Heinz & Co., Pittsburgh, PA, you requested a ruling on the status of a food ingredient from Mexico and Canada under the NAFTA. The product is said to be the same as the good described as “tomato slurry” in ruling letter N003434, issued to your firm for this same client on December 15, 2006. Here, you state the product may also be described as “tomato sugar syrup”, “concentrated tomato juice”, or “tomato concentrate from pre-concentrated tomato juice”. The composition and use of the product will be the same, viz., 62 percent cane or beet sugar, 21 percent water, 10 percent tomato paste (28 Brix), and 7 percent vinegar, used in the manufacture of tomato-based products. In ruling N003434, all ingredients were products of a NAFTA country. You now indicate the sugar ingredient may be sourced from Mexico, Brazil, Venezuela, El Salvador, Costa Rica, or Nicaragua. The applicable tariff provision for this product will be 2106.90.9400, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included…other…other…other…articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17…other. The general 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, 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; Based on the facts provided, the tomato product described above, when made in Mexico using Mexican sugar, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(i). It will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements When made in Mexico using sugar from Brazil, Venezuela, El Salvador, Costa Rica, or Nicaragua, the tomato product will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and General Note 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 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. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division