The tariff classification, country of origin and status under the North American Free Trade Agreement (NAFTA) of Maple Hard Candies, Maple Old Fashioned Candies and Maple Organic Hard Candies from Canada; Article 509

N078595 October 28, 2009 CLA-2-17:OT:RR:NC:232 CATEGORY: Classification TARIFF NO.: 1704.90.3550 Mr. Jean Phillippe O. Bourque Macafa Products 295 14th Avenue La Guadeloupe, Quebec GOM1GO Canada RE: The tariff classification, country of origin and status under the North American Free Trade Agreement (NAFTA) of Maple Hard Candies, Maple Old Fashioned Candies and Maple Organic Hard Candies from Canada; Article 509 Dear Mr. Bourque: In your letter dated October 1, 2009, you requested a ruling on the country of origin and status of Maple Hard Candies, Maple Old Fashioned Candies and Maple Organic Hard Candies from Canada under the NAFTA. The subject merchandise is described as Maple flavored hard candy drops in three varieties: Maple Hard Candies, Maple Old Fashioned Candies and Maple Organic Hard Candies. Maple Hard Candies are said to contain 35.0 percent maple syrup from Canada, 30.0-34.0 percent corn syrup from the United States, 30.0-34.0 percent refined cane sugar from Canada and 1.0-3.0 percent dairy butter from Canada. Maple Hard Candies are imported in three formats: First format: bulk boxes having a weight of 22 pounds containing individually wrapped candies in clear plastic pillow packs. Second format: boxes of retail packed clear plastic bags of individually wrapped candies. Each box contains 36 retail bags; bags weigh less than 32 ounces with the trade name “Cumberland Confectionery” placed on the front. Third format: boxes of retail packed clear plastic bags of individually wrapped candies. Each box contains 36 retail bags; bags weigh less than 32 ounces with no nutritional labels or company names on bags. Old Fashioned Maple Candies are said to contain 34.0 percent maple syrup from Canada, 30.0-34.0 percent corn syrup from the United States, 30.0- 34.0 percent cane sugar from Canada and 1.0-3.0 percent dairy butter from Canada. Old Fashioned Maple Candies are imported in retail packed decorative tins. Each tin weighs 3.5 or 5.5 ounces, 12 or 24 tins to a case with each tin containing the loose candy. Organic Maple Hard Candies are said to contain 35.0 percent maple syrup from Canada 30.0-34.0, 30.0-35.0 percent organic tapioca syrup made in Thailand and 30.0-35.0 percent organic evaporated cane juice (country of origin is unknown). Organic Maple Candies are imported in boxes of retail packed clear plastic bags of candies individually wrapped. Each box contains 36 retail bags; each bag weighs less than 32 ounces with the trade name “Organic Cumberland Confectionery” or “Else” placed on the front. Lacking specific information as to the county of origin of the organic evaporated cane juice, this office has assumed for the purpose of this ruling that it is sourced from a non-originating NAFTA country. The applicable tariff provision for the Maple Hard Candies, Maple Old Fashioned Candies and Maple Organic Hard Candies will be 1704.90.3550, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for Sugar confectionery (including white chocolate), not containing cocoa: Other: Other: put up for retail sale. The general rate of duty will be 5.6 percent ad valorem. 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, thatFor 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, Maple Hard Candies and Maple Old Fashioned Candies described above, when classified in subheading 1704.90.3550, HTSUS, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(i)(A). Maple Organic Hard Candies described above, when classified in subheading 1704.90.3550, HTSUS, will qualify for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(t)/17.2. The non-originating materials, organic tapioca syrup and organic evaporated cane juice have satisfied the change in tariff shift. “Maple Candies” will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. Your inquiry also requests a ruling on the country of origin for an imported article which is produced in Canada. In this case, the “Maple Candies” were produced in Canada, a participant in the North American Free Trade Agreement (NAFTA) and the NAFTA Marking Rules must be used to determine marking and country of origin. 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.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." 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 134.1(b), Customs Regulations [19 CFR 134.1(b)], defines the country of origin as the country of manufacture, production, or growth of any article of foreign origin entering the Untied States. 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 the meaning of this part. However, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.Section 102.11, Customs Regulation (19 CFR 102.11), sets forth the required hierarchy for determining whether a good is a good of a NAFTA country for marking purposes. Paragraph (a) of this section states that the origin of a good is the country in which: The good is wholly obtained or produced; The good is produced exclusively from domestic materials; or Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in Section 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied. Section 102.1 (e), Customs Regulations [19 CFR 102.1(e)] defines “foreign material” as “a material whose country of origin as determined under these rules is not the same country or origin as the country in which the good is produced.” The Maple Hard Candies and Maple Old Fashioned Candies are wholly obtained or produced in Canada; Maple Organic Hard Candies constitutes an applicable change in tariff classification and the goods are produced in Canada within the requirements of Section 102.20. This makes all the products: Maple Hard Candies, Maple Old Fashioned Candies and Maple Organic Hard Candies a good of “Canada” for marking and country of origin purposes, noting the requirements of Section 102.11(1) and 102.11(3). 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/. 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 Frank Troise at 646-733-3031. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division