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NY 806362

February 10, 1995

CLA-2-21:S:N:N7:228 806362


TARIFF NO.: 2103.90.9060

Ms. Vivian Villa
Villa's Authentic Sauces, Inc.
480 Bloor Street W.
Toronto, Ontario M5S 1X8 Canada

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of pesto sauces from Canada; Article 509

Dear Ms. Villa:

In your letter dated January 25, 1995 you requested a ruling on the status of pesto sauces from Canada under the NAFTA.

Samples of two products, submitted with earlier correspondence, were examined and disposed of. "Villa's Pesto Sauce" is a thick, green, creamy food product with scattered small pieces of basil leaf and pine nuts, said to be composed of 48 percent parmesan cheese, 19 percent butter, 17 percent garlic, 7 percent fresh basil, 4 percent romano cheese, 3 percent pine nuts, and 2 percent olive oil. "Villa's Pesto with Sundried Tomato" is a red/brown product of similar consistency, made from 24 percent sun-dried tomatoes, 24 percent parmesan cheese, 19 percent butter, 17 percent fresh garlic, 7 percent fresh basil, 4 percent romano cheese, 3 percent pine nuts, and 2 percent olive oil. The primary use for these products is as a sauce for pasta, after the addition of a small quantity of hot water.

With three exceptions, all of the ingredients are said to be products of Canada, Mexico, or the United States. The ingredients from non-NAFTA countries are the pine nuts (product of China), the basil (France), and the olive oil (Italy). The production process involves blending all ingredients in a high- powered industrial mixer, dispensing into 125-milliliter plastic tubs, packing, and freezing.

The applicable tariff provision for the pesto sauces will be 2103.90.9060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for sauces and preparations therefor...other...other...other. The general rate of duty will be 7.3 percent ad valorem.

Each of the non-originating materials used to make the pesto sauces has satisfied the changes in tariff classification required under HTSUSA General Note 12(t)/21. The pesto sauces will be entitled to a 2.2 percent ad valorem 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 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 interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994 to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements of these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).

The samples you have submitted do not appear to be properly marked with the country of origin. You may wish to discuss the matter of country of origin marking with the Customs import specialist at the proposed port of entry.

The importation of this merchandise may be subject to restrictions imposed by the United States Department of Agriculture and/or Food and Drug Administration. It is suggested you contact these agencies directly for further information. This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.


Jean F. Maguire
Area Director

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