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NY K87760





August 12, 2004

CLA-2-20:RR:NC:2:228 K87760

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.19.8500; 2008.92.9094

Ms. Joanne Burke
Willson International Inc.
One Heritage Place
Southgate, MI 48195

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

Dear Ms. Burke:

In your letter dated July 8, 2004, on behalf of Johnvince Foods, Toronto, Ontario, Canada, you requested a ruling on the status of fruit and nut mixes from Canada under the NAFTA.

Ingredients breakdowns and a description of the processing accompanied your letter. Samples were provided with earlier correspondence. The products are snack foods composed of a mixture of dried fruits and nuts, packed for retail sale in clear plastic tubs that are not airtight. Sierra Mix is composed of 40 percent roasted peanuts, 20 percent roasted sunflower seeds, 15 percent Thompson raisins, 10 percent raw pumpkin seeds, 8 percent roasted cashews, and 7 percent roasted almonds. Deluxe Mixed Nuts With 25% Cashews is a mixture of 25 percent roasted cashews, 25 percent roasted almonds, 25 percent raw Brazil nuts, 20 percent roasted filberts, and 5 percent roasted pecans. Harvest Mix consists of 25 percent roasted and salted peanuts, 20 percent Thompson raisins, 20 percent dried pineapple, 15 percent dried papaya, 10 percent dried apricots, 5 percent roasted and salted almonds, and 5 percent fried banana chips. Cranberry Cocktail Fruit & Nut Mix contains 25 percent Thompson raisins, 25 percent dried cranberries, 20 percent golden raisins, 20 percent roasted and salted peanuts, 5 percent raw pumpkin seeds, and 5 percent roasted cashews.

The peanuts, Thompson raisins, almonds, sunflower seeds, cranberries, and pecans are products of the United States. The pineapple and papaya are products of Thailand, the apricots and filberts are products of Turkey, the banana chips are goods of the Philippines, the pumpkin seeds are products of China, the golden raisins are products of South Africa, the Brazil nuts are goods of Brazil, and the cashews may be products of Brazil or Venezuela. The peanuts, almonds, sunflower seeds, cashews, and pecans are imported in raw condition and are either roasted (Sierra Mix, Cranberry Mix, Deluxe Mix) or roasted and salted (Harvest Mix) in Canada prior to blending with the other ingredients. The pumpkin seeds and Brazil nuts are imported in raw condition and are blended with the other ingredients in that form. All other ingredients have been fully processed (i.e., roasted, fried, dried, sweetened) in their respective countries of origin and are merely mixed with the other ingredients in Canada.

The applicable tariff provision for the Sierra Mix and the Deluxe Mixed Nuts With 25% Cashews will be 2008.19.8500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preservednuts, peanuts (ground-nuts) and other seeds, whether or not mixed togetherother, including mixturesmixtures. The general rate of duty will be 22.4 percent ad valorem

The applicable tariff provision for the Harvest Mix and the Cranberry Cocktail Fruit & Nut Mix will be 2008.92.9094, HTSUSA, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preservedother, including mixtures other than those of subheading 2008.19mixturesotherother. The general rate of duty will be 14.9 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. ยง 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

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or

Based on the facts provided, the Sierra Mix and the Cranberry Cocktail Fruit & Nut Mix described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUSA General Note 12(b)(ii)(A) and 12(t)/20.4. The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

The Harvest Mix and the Deluxe Mixed Nuts With 25% Cashews do not qualify for preferential treatment under the NAFTA because none of the above requirements are met. The pineapple, papaya, banana, and filbert ingredients do not undergo the change in tariff classification required by General Note 12(t)/20.4.

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 Harvest Mix is a good of the United States, Thailand, Turkey, and the Philippines, the Deluxe Mixed Nuts With 25% Cashews is a good of Turkey, and the Sierra Mix and the Cranberry Cocktail Fruit & Nut Mix are goods of Canada for marking purposes

If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. ยง1304. 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 contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the U.S.

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.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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