The tariff classification and status under the North America Free Trade Agreement (NAFTA), of a sweetened cocoa powder from Mexico; Article 509

N006655 March 2, 2007 CLA-2-18:RR:NC:SP:232 CATEGORY: Classification TARIFF NO.: 1806.10.5500 Mr. Robert Tinkham Chicago Sweeteners Inc. 1700 Higgins Road Suite 610 Des Plaines, Illinois 60018 RE: The tariff classification and status under the North America Free Trade Agreement (NAFTA), of a sweetened cocoa powder from Mexico; Article 509 Dear Mr. Tinkham: In your letter dated February 5, 2007, you requested a ruling on the status of sweetened cocoa powder from Mexico under the NAFTA. The subject merchandise is stated to contain 99 percent refined sugar and 1 percent cocoa powder. The product will be imported in a variety of package sizes ranging from 50 pound bags, one ton totes and 90 ton bulk railcars. The product, once imported, will be used as an ingredient in the manufacture of a variety of food applications. The sugar in the blend will be grown and refined in either the United States or Mexico. It may also be refined in Mexico, the United States or Canada from sugar imported from non-NAFTA countries such as: Argentina, Australia, Barbados, Bolivia, etc. The sugar may also be grown and refined in a non-NAFTA country. The cocoa powder will be manufactured in the United States and/or Indonesia from cocoa beans imported from non-NAFTA countries. The applicable tariff provision for the sweetened cocoa powder will be 1806.10.5500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for cocoa powder, containing added sugar or other sweetening matter: containing 90 percent or more by dry weight of sugar...articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17...other. The general rate of duty will be 33.6 cents per kilogram. 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(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or(iv) they are produced entirely in the territory of Canada, Mexico and/or the United States but one or more of the nonoriginating materials falling under provisions for "parts" and used in the production of such goods does not undergo a change in tariff classification because--(A) the goods were imported into the territory of Canada, Mexico and/or the United States in unassembled or disassembled form but were classified as assembled goods pursuant to general rule of interpretation 2(a), or(B) the tariff headings for such goods provide for and specifically describe both the goods themselves and their parts and is not further divided into subheadings, or the subheadings for such goods provide for and specifically describe both the goods themselves and their parts, provided that such goods do not fall under chapters 61 through 63, inclusive, of the tariff schedule, and provided further that the regional value content of such goods, determined in accordance with subdivision (c) of this note, is not less than 60 percent where the transaction value method is used, or is not less than 50 percent where the net cost method is used, and such goods satisfy all other applicable provisions of this note.      Based on the facts provided, the goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b)(ii)(A). The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.  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 177 of the Customs Regulations (19 C.F.R. 177). 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