The tariff classification, country of origin, and status under the North American Free Trade Agreement (NAFTA), of Black Box 440 from Canada; Article 509

N262509 June 26, 2015 CLA-2-21:OT:RR:NC:N2:228 CATEGORY: Classification TARIFF NO.: 2106.90.9997 Ms. April Collier Pacific Customs Brokers, Inc. 1400 A Street Blaine, WA 98230 RE: The tariff classification, country of origin, and status under the North American Free Trade Agreement (NAFTA), of Black Box 440 from Canada; Article 509 Dear Ms. Collier: In your letter dated February 26, 2015, on behalf of Earth’s Own Food Company Inc., you requested a ruling on the status of Black Box 440 from Canada under the NAFTA. An ingredients breakdown accompanied your inquiry. A sample received on March 26, 2015 under separate correspondence was forwarded to U.S. Customs and Border Protection laboratory. Additional information was provided via email on June 24, 2015. Black Box 440 is a white powder, composed of Israel-origin tri-calcium phosphate, and U.S.-origin Carrageenan Viscarin® SD389 (carrageenan and dextrose), Kelcogel ®HS-B Gellan Gum (gellan gum and sucrose), and Cargill™ salt (purified sea salt). The product is blended in Canada and shipped to the United States packaged in bulk, said to be used in further manufacturing of food products, primarily almond milk. Laboratory analysis found that the sample has a moisture content of 2.88 percent and 6.8 percent sucrose on a dry basis. The applicable tariff provision for the Black Box 400 will be 2106.90.9997, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included … other … other … other … containing sugar derived from sugar cane or sugar beets. 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 the 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; or .... Based on the facts provided, the product described above qualifies 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. 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, CBP Regulations (19 C.F.R. 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 CBP Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, CBP Regulations. The marking requirements of these goods are set forth in Part 134, CBP 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. 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 country of origin of the Black Box 400 for marking purposes is the United States. The country of origin for Customs duty purposes will be Canada. Products of the United States are not subject to the country of origin marking requirements of 19 U.S.C. 1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you direct any questions on this issue to the FTC. 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 Bruce N. Hadley, Jr. at bruce.hadleyjr@cbp.dhs.gov. Sincerely, Gwenn Klein Kirschner Director National Commodity Specialist Division