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

N057759 May 15, 2009 CLA-2-21:OT:RR:E:NC:N2:228 CATEGORY: Classification TARIFF NO.: 2103.90.8000 Mr. Petr Boucek 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 seasoning from Canada; Article 509 Dear Mr. Boucek: In your letter dated April 16, 2009, on behalf of Olde York Potato Chips, Brampton, Ontario, Canada, you requested a ruling on the status of a seasoning from Canada under the NAFTA. An ingredients breakdown accompanied your letter. Sharp Cheddar and Jalapeno Chip Seasoning is a dry mixture composed of approximately 29 percent whey, 20 percent salt, 8 percent onion powder, 7 percent shortening powder, 5 percent, each, of tomato powder, cheddar cheese blend, cheddar cheese, dextrose monohydrate, monosodium glutamate, and garlic powder, 4 percent ground jalapeno, one percent citric acid, and less than one percent, each, of artificial cheddar flavor, oleo capsicum, oleo paprika, artificial jalapeno flavor, cheddar flavor, lactic acid, and drying agent. The onion powder, shortening powder, cheddar cheese blend, cheddar cheese, dextrose monohydrate, artificial cheddar flavor, artificial jalapeno flavor, cheddar flavor, and drying agent are products of the United States. The whey and salt are from Canada. The MSG, garlic powder, tomato powder, and citric acid are from China, the ground jalapeno is from Chile, the oleo capsicum and oleo paprika are from India, and the lactic acid is from the Netherlands. In Canada, the ingredients are blended and packed in 20-kg bags. The seasoning will be applied to pre-salted potato chips by the snack manufacturer. The applicable tariff provision for this seasoning mix will be 2103.90.8000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for mixed condiments and mixed seasonings…other. 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 Sharp Cheddar and Jalapeno Chip Seasoning described above qualifies for NAFTA preferential treatment, because it meets the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.7A(A). The product 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 Sharp Cheddar and Jalapeno Chip Seasoning is a good of Canada for marking purposes. 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