CLA-2 CO:R:C:F 088799

Mr. Frank Brennan
De Angelus and Schaffer
1455 Pennsylvania Ave., N.W.
Suite 1150
Washington, D.C. 20004

RE: Sweetened Cocoa Blended in Canada

Dear Mr. Brennan:

This is in reference to the request of February 27, 1991, by Canadian Blending and Processing, Inc., in association with your office, for a tariff classification ruling on sweetened cocoa blended in Canada and then directly shipped to the United States. Further information regarding that request was submitted with your letter dated March 26, 1991, and subsequent oral and written communications. Your letter of May 2, 1991, confirmed your prior oral withdrawal of a request for confidential treatment of information in the February letter and noted the existence of Customs Headquarters telexes regarding the corrected rate of duty under the United States - Canada Free Trade Agreement (CFTA) for products under subheading 1806.10.4200, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The article under consideration is composed of cocoa powder produced in the United States from cocoa beans of various foreign origins which is blended with sugar. The sugar may come from Finland or one of the Countries of the European Economic Community (EEC). In such case the sugar would be white refined sugar and would be used as is without further processing. - 2 -

Alternatively, the sugar might be of Australian or Latin American origin. In that case it would be imported into Canada as brown raw sugar which would have to be further refined to remove impurities.

The refined sugar and the cocoa powder will be weighed by batch size, mixed in a commercial dry blender, and bagged in Canada. No other contents will be added to the sweetened cocoa nor will it be subjected to any further processing, except for bagging, prior to its direct exportation to the United States.

The final product will be approximately 94 per cent sugar and 6 per cent cocoa powder by weight. It is estimated that the value of the cocoa powder and the Canadian processing for the sugar refined prior to importation into Canada will be 25.71 per cent of the value of the finished product. The value of the cocoa powder and the Canadian processing for the sugar refined in Canada will be 51.24 per cent of the value of the finished product. ISSUE:

1. What is the tariff classification of sweetened cocoa?

2. Is sweetened cocoa, composed of sugar from non- U.S./Canadian sources and cocoa from the U.S., which is blended in Canada, eligible for the treatment under the CFTA?

3. Is the sweetened cocoa considered a product of Canada for tariff classification and quota purposes?

4. What is the country of origin for marking purposes?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the heading and relative section and chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

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ISSUE 1:

In considering the headings under which the article may be classified, we noted heading 1806, which covers chocolate and other food preparations containing cocoa. Subheadings thereunder provide for cocoa powder, containing added sugar or other sweetening matter. The applicability of a particular subheading is based on the per cent of sugar in the product and whether the article is described in paragraphs (a) and (b) of additional U.S. note 3 to chapter 17, HTSUSA. This note refers to the establishment of quota amounts of sugars, etc., and the allocation thereof to supplying countries. If the article is described in the note, it is dutiable on the total sugars at the rate applicable under subheading 1701.10.01, HTSUSA, and under subheading 1701.11.03, HTSUSA, if not described under that note. A special rate of duty is applicable if the article is eligible for treatment under the CFTA. Since the article, which is treated for duty purposes as sugar, contains more that 90 per cent sugar and the sugars are not described in the aforementioned U.S. note, it is clear, as suggested by the inquirer, that the article is classifiable under subheading 1806.10.42, HTSUSA.

ISSUE 2:

In considering the eligibility of the article for treatment under the CFTA we considered the origin of each of the components of the article, the nature of the processing which will take place prior to importation into the United States, and the applicability of the provisions of the United States-Canada Free- Trade Agreement Implementation Act of 1988, as specified in General Note 3(c)(vii) to the HTSUSA.

The final product will be composed of cocoa powder produced in the United States from cocoa beans of various foreign origins. The sugar will originate outside the U.S. and Canada and will be refined at its source or in Canada. In Canada, the refined sugar and the cocoa will be preweighed per batch size, fed into a dry blender where they will be mixed to form the sweetened cocoa and then bagged. The importer has suggested that since sugars are classified in Chapter 17, HTSUSA, for duty purposes and the final product is classified in chapter 18, HTSUSA, there has been a change in the tariff classification and the final product is, therefore, eligible for treatment under the CFTA. The importer has specifically cited General Note (3)(vii)(R)(4)(aa) in support thereof. The importer further suggested that, in the event that the cocoa powder would not be considered to be of U.S. origin, - 4 -

the CFTA would still apply pursuant to General Note (3)(vii)(R)(4)(cc), relative to a change to heading 1806 from any other heading.

The eligibility of the final product for treatment under the CFTA would, as suggested by the importer, seem to be covered by General Note 3(c)(vii)(B)(2)(1). Under that CFTA provision goods are considered "goods originating in the territory of Canada" if they have been transformed in the territory of Canada and/or the United States, so as to be subject to a change in tariff classification as described in the rules of subdivision (c)(vii)(R) of General Note 3. We, however, note that General Note 3(c)(vii)(C)(1), which is a reiteration of section 301(3)(a) of the CFTA, provides that goods shall not (emphasis added) be considered to originate in the territory of Canada pursuant to subdivision (c)(vii)(B)(2) of General Note 3 merely by virtue of having undergone-

(1) simple packaging or, except as expressly provided by the rules of subdivision (c)(vii)(R) of this note, combining operations (emphasis added).

Pursuant to the Communication from The President of the United States , House Document 100-216 of the 100 Congress, 2d Session, (at Page 175), transmitting various documents relating the adoption of the CFTA, it is specified, on page 175, that the prohibition of Article 301(3)(a) and (b) will be applied in the same manner as under the Generalized System of Preference (GSP) and the Caribbean Basin Initiative (CBI) programs. In this regard it is noted that the Customs Regulations which implemented the CBI, a simple combining operation does not qualify goods for treatment under CBI, see section 10.195, Customs Regulations (19 CFR 10.195).

In considering the applicability of the aforementioned provisions regarding a simple combining operations not qualifying goods for special treatment, we considered both of the suggested scenarios: i.e., the one where the sugar is refined in Canada and the one where the sugar is refined outside Canada. We do not believe that the process whereby refined sugar imported into Canada is mixed with cocoa of U.S. origin, produces a material alteration of the goods as required by section 10.304, Customs Regulations (19 CFR 10.304). Nothing will be done except combining the sugar and the cocoa. We, therefore, have concluded that such process amounts to no more than a simple combining operation. Accordingly, the article composed of refined sugar - 5 -

imported into Canada and U.S. origin cocoa is not eligible for special treatment under the CFTA.

We, however, believe that the process whereby raw sugar is imported into Canada and subsequently refined to remove impurities and raise its polarity before it is combined with U.S. origin cocoa, is more that a simple combining. These goods may be considered as goods originating in Canada, making the article, sweetened cocoa, eligible for special treatment under the CFTA. ISSUE 3: We do not agree with the importer that a substantial transformation has taken place by combining (blending) the sugar of whatever origin, and the cocoa of U.S. origin. We do not believe that a new and different product has emerged from the blending process. Cocoa will go into Canada and cocoa will come out of Canada. While the product being exported was sweetened, for tariff purposes, it remains cocoa. Conversely, from a tariff treatment point of view, we have sugar, raw or refined, going into Canada and sugar with an added ingredient, cocoa, being exported. There has not been a transformation; a new and different article must emerge having a distinctive name, character, or use. Superior Wire v. U.S., 669 F. Supp. 472, (CIT 1987), aff'd 867 F. 2d 1409 (1989). Further, the refining in Canada of raw sugar would not be a substantial transformation (see Headquarters Ruling Letters 082033 and 085216 of September 5, 1989, and October 27, 1989, respectively). Accordingly, there has not been a substantial transformation and the blended sugar and cocoa remain the product of the countries where they originated.

ISSUE 4

The imported article is a blend of sugar, which is a product of a non-U.S./Canadian source, and cocoa, which is a product of the U.S. These ingredients are not substantially transformed in Canada, as previously discussed, and, therefore, remain the product of the country from where each originated. However, because the cocoa powder is a product of the U.S., it is excepted - 6 -

from marking under section 134.32(m), Customs Regulations (19 CFR 132.34(m)), pertaining to U.S. products exported and returned. Therefore, the product should be marked to indicate the country of origin of the sugar. A marking such as "Sugar Product of ______________" would be acceptable.

HOLDING:

The sweetened cocoa blended in Canada with cocoa powder produced in the United States from cocoa beans of various foreign origins and sugar of a non-U.S./Canadian origin, which will be refined in the country of origin of the sugar or in Canada, is classifiable in subheading 1806.10.42, HTSUSA, as cocoa powder, containing added sugar or other sweetening matter, other, other. The ingredients are not substantially transformed in Canada and, therefore, they remain the product of the country of origin. The article would be dutiable on the total sugars at the rate applicable under subheading 1701.11.03.

The sweetened cocoa, if composed of sugar refined in Canada, and U.S. origin cocoa, would be considered as goods originating in Canada and eligible for a reduced rate of duty upon compliance with the provisions of section 10.307, Customs Regulations (19 CFR 10.307). If the sweetened cocoa is composed of sugar refined outside of Canada and U.S. origin cocoa, it would not be eligible for such special treatment.

Since no substantial transformation has taken place in Canada the product must be marked to indicate the country from where the sugar originated and in accordance with the requirements of 19 CFR Part 134. The cocoa powder is excepted from marking requirements under 19 CFR 134.21(m).

Since the sugar, combined with Cocoa, is provided for in subheading 1806.10, HTSUSA, it is not subject to the section 22 fees under subheading 9904.40.20, HTSUSA, which is only applicable to sugar classifiable under specific subheading of Chapter 17, HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division