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

N042220 October 29, 2008 CLA-2-21:RR:E:NC:2:228 CATEGORY: Classification TARIFF NO.: 2103.90.9091 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 sauce mix from Canada; Article 509 Dear Ms. Johnson: In your letter dated October 20, 2008, you requested a tariff classification ruling. An ingredients breakdown accompanied your letter. Bold Original BBQ Sauce is a dry mix, said to be composed of approximately 28 percent fructose, 22 percent starch, 15 percent white sugar, 12 brown sugar, 8 percent tomato powder, 4 percent vinegar flavor, 4 percent molasses powder, 4 percent salt, and less than one percent, each, mesquite smoke flavor, hickory smoke flavor, charbroil flavor, citric acid, white pepper, onion powder, mustard, garlic powder, cayenne pepper, celery seed, black pepper, and ginger. The mix is reconstituted with water before use. The salt, sugar, and mustard are products of Canada. The fructose, smoke flavors, charbroil flavor and molasses powder, are products of the United States. The starch is a product of the United States and Canada. The cayenne pepper, celery seed, black pepper, and ginger are from India. The citric acid and garlic are from China. The white pepper is from Indonesia, and the tomato powder is from Switzerland. In Canada, the ingredients are blended and packed into 20.1-kilogram bags. The applicable subheading for the Bold Original BBQ Sauce mix, will be 2103.90.9091, Harmonized Tariff Schedule of the United States (HTSUS), which provides for sauces and preparations therefore…other…other…other. The 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 sauce mix described above, when classified in subheading 2103.90.0091, HTSUS, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.7A(B). 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. 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 sauce mix 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 National Commodity Specialist Division