CLA-2-20:OT:RR:NC:N2:228
Mr. Mark Johnson
McClary, Swift & Co. – Blaine, Inc.
8105 Birch Bay Square Street, Suite 201
Blaine, WA 98230
RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA) of a snack mix from Canada; Article 509
Dear Mr. Johnson:
In your letters dated November 19, 2012 and January 8, 2013, you requested a ruling on the status of a snack mix from Canada under the NAFTA on behalf of Golden Boy Foods Ltd., Canada.
An ingredients breakdown accompanied your November letter. A sample and descriptions of the manufacturing process were submitted with your January letter. The sample was examined and disposed of. Banana Burst Trail Mix is a snack mix composed of 20 percent whole banana chips, 18 percent Thompson raisins, 14 percent dark chocolate bananas, 12 percent raw cashew nuts, 12 percent raw walnuts (combination of halves and pieces), 10 percent dried cranberries, 8 percent raw pumpkin seeds, and 6 percent yogurt covered cranberries, put up for retail sale in a 200-gram, sealed plastic bag.
The whole banana chips are products of Philippines, consisting of 60 percent bananas, 25 percent coconut oil, and 15 percent sugar, produced by slicing the bananas into chips, frying in oil and sweetening with sugar. The Thompson raisins are products of the United States, containing 99 percent raisins and 1 percent sunflower seed oil. The raisins are coated in oil, and sun dried. The dark chocolate bananas (bite-size bananas chunks completely coated with the chocolate) may be products of the United States or Costa Rica, consisting of 70 percent dark chocolate coating, 30 percent bananas, and trace amount of food glaze. The raw cashew nuts may be products of Vietnam, India, Brazil or the Ivory Coast. The raw walnuts may be products of the United States or India. The dried cranberries and the yogurt covered cranberries may be products of the United States or Canada. The dried cranberries consist of 60 percent, 39 percent sugar, and 1 percent sunflower seed oil. The cranberries are coated with sugar and oil, then undergo a convection heated air drying process. The yogurt covered cranberries are an oval-shaped, white snack product, containing 53 percent cranberries, 31 percent sugar, 10 percent palm oil, 3 percent whey protein concentrate powder, 2 percent yogurt powder, and less than 1 percent each, soya lecithin, titanium dioxide, glucose, tapioca, dextrin, and confectionery glaze. The product is produced by mixing all of the ingredients (except the cranberries), coating the cranberries with the mixture, and drying. The raw pumpkin seeds may be products of the United States or China.
Each ingredient is fully processed into its final form in its respective country of origin. At Golden Boy Foods’ facility in Canada, all ingredients are merely mixed together, and then packaged for retail sale. The Banana Burst Trail Mix will be classified as a mixture under General Rule of Interpretation (GRI) 3, Harmonized Tariff Schedule of the United States (HTSUS).
The applicable subheading for the Banana Burst Trail Mix, when packed in airtight containers, will be 2008.97.1040, HTSUS, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included … other, including mixtures other than those of subheading 2008.19 … mixtures … in airtight containers and not containing apricots, citrus fruits, peaches or pears … other. The rate of duty will be 5.6 percent ad valorem. When not in airtight containers, the applicable subheading for the product will be 2008.97.9094, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included … other, including mixtures other than those of subheading 2008.19 … mixtures … other … other. The rate of duty will be 14.9 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; . . . .
Based on the facts provided, the Banana Burst Trail Mix described above will not qualify for NAFTA preferential treatment because the whole banana chips will not undergo the change in tariff classification required by General Note 12(t)/20.4.
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 Bruce N. Hadley, Jr. 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, Regulations & Rulings, 799 9th Street N.W. - 7th floor, Washington, DC 20229-1177.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division