CLA-2-08:OT:RR:NC:2:228
Mr. Paul Driscoll
Sliced FC Ltd.
73 Bannister Road
Winnipeg R2R0P2
Canada
RE: The tariff classification of fresh fruits from Canada
Dear Mr. Driscoll:
In your letter dated September 9, 2019, you requested a tariff classification, country of origin and marking ruling.
Ingredients breakdowns, manufacturing narrative descriptions and flowcharts, and copies of the retail labels accompanied your inquiry. In Canada, all the fruits will be cleaned, peeled, sliced or cut and repackaged into retail plastic containers.
The Fruit Tray is said to contain approximately 10 percent whole red grapes, 22 percent cantaloupe chunks, 22 percent honeydew melon chunks, 23 percent pineapple chunks, and 23 percent watermelon chunks. The cantaloupes and honeydew melons will be grown in the United States, Mexico, Canada, Costa Rica, Honduras and Guatemala. The watermelons will be grown in Costa Rica, Honduras, Mexico, and the United States. The grapes will be grown in Chile, Mexico, South Africa, United States and Peru. The pineapples will be grown in Costa Rica and Mexico. The Fruit Tray will also contain 22 percent sliced apples and 22 percent Piel de Sapo melon chunks as a substitution throughout the year for other fruits listed. The sliced apples will be grown in the United States, Chile, New Zealand, South Africa, and Canada. The Piel de Sapo melons will be grown in Brazil, United States and Honduras.
The Fruit Fusion is said to contain approximately 10 percent whole grapes, 23 percent sliced apples, 23 percent sliced and peeled oranges, 22 percent honeydew melon chunks, 22 percent cantaloupe chunks. The whole grapes will be imported from the United States, Chile, Mexico, South Africa and Peru. The honeydew melons and cantaloupes will be grown in Honduras, Canada, and Costa Rica. The grapefruits will be grown in South Africa, United States, and Mexico. The pineapples will be grown in in Costa Rica. The mangoes will be grown in Peru, Mexico, and Brazil. The oranges will be grown in Australia, Morocco, Portugal, South Africa, Spain and the United States. The Fruit Fusion will also consist of 22 percent peeled grapefruit chunks, 22 percent pineapple chunks, 22 percent mango chunks as a substitution throughout the year for the fruit listed above.
The Fruit Salad is said to contain a fresh cut blend of approximately 10 percent whole grapes, 30 percent honeydew melon chunks, 30 percent cantaloupe chunks, and 30 percent sliced and peeled oranges. The grapes will be grown in Chile, Mexico, South Africa, the United States and Peru. The honeydew melons and cantaloupes will be grown in Honduras and Costa Rica. The oranges will be grown in Australia, Morocco, Portugal, South Africa, Spain, and the United States. The pineapples will be grown in Costa Rica. The grapefruit will be grown in South Africa, the United States and Mexico. The Fruit Salad will also consist of 30 percent peeled grapefruit chunks, and 30 percent pineapples as a substitution throughout the year for the fruit listed above.
The Mixed Melons are said to contain a fresh cut blend of approximately 34 percent watermelon chunks or 34 percent Piel de Sapo, 33 percent honeydew melon chunks, and 33 percent cantaloupe chunks. The watermelons will be grown in Mexico. The honeydew melons and the cantaloupes will be grown in Honduras, Canada, Costa Rica, and Guatemala. The Piel de Sapo will be grown in Brazil and Honduras.
The Fruit Bowl is said to contain a fresh cut blend of approximately 34 percent watermelon chunks, 33 percent honeydew melon chunks, and 33 percent cantaloupe chunks. The watermelon will be grown in Mexico. The honeydew and cantaloupes will be grown in Honduras, Canada, Costa Rica, and Guatemala. The strawberries will be grown Mexico, Canada, and the United States. The oranges will be grown in the United States, Morocco, Portugal, South Africa, and Spain. The Piel de Sapo will be grown in Brazil and Honduras. The mangoes will be grown in Peru and Brazil.
The applicable subheading for the five products will be 0810.90.4600, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other fruit, fresh . . . other . . . other. The general rate of duty will be 2.2 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/.
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 and Border Protection (CBP) 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 CBP Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, CBP Regulations. The marking requirements of these goods are set forth in Part 134, CBP 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 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 country of origin of each fruit mix will be the countries of origin of all ingredients that it contains. As you state in your letter, the country of origin of each fruit will change depend on the time of the year, so the country of origin of each fruit mix will change accordingly.
Goods of U.S. origin are excepted from the country of origin marking requirements of 19 U.S.C. 1304. The marking of articles in whole or in part as “Product of U.S.A.” is a matter within the jurisdiction of the Federal Trade Commission (FTC), therefore, we suggest that you contact that agency with any questions on this issue. Section 134.1(d), CBP Regulations (19 CFR 134.1(d)), defines the ultimate purchaser as “generally the last person in the U.S. who will receive the article in the form in which it was imported.” 19 CFR 134.1(d) (3) states “if an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.” Section 134.32, CBP Regulations (19 CFR 134.32), provides general exception to marking requirements. Articles for which the marking of the containers will reasonably indicated the origin of the articles are excepted from marking requirements. See19 CFR 134.32 (d). Section 134.22, CBP Regulations (19 CFR 134.22), provides general rules for marking of containers or holders. 19 CFR 134.22 (a) states “When an article is excepted from the marking requirements by subpart D of this part, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of origin of the article whether or not the article is marked to indicate its country of origin.” As provided in section 134.41(b), CBP Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. In section 134.1(k), CBP Regulations (19 C.F.R. 134.1(k)), “Conspicuous” means capable of being easily seen with normal handling of the article or container. With regard to the permanency of a marking, section 134.41(a), CBP Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, CBP Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. Based on the submitted pictures of the labels, the proposed markings of the imported fruit mixes meet the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, and are acceptable countries of origin markings. However, the label is to reflect the markings of only the countries of origin of each fruit contained in each package.
The country of origin marking rules do not apply to articles of U.S. origin and it is not necessary to indicate the origin of the U.S. goods for Customs purposes. We would not object to their inclusion in the marking. However, as noted above, if you choose to indicate the U.S. origin of any item, then the marking will need to comply with the requirements of the FTC.
Please be advised that it is CBP policy that “in most circumstances, it is not acceptable for purposes of 19 U.S.C. 1304 to mark an article in the disjunctive with the legend ‘Product of _________ or ________’ since this does not indicate the actual country of origin of the imported article as required by 19 U.S.C. 1304.” See Headquarter ruling letter HQ 560855, dated July 8, 1998. Therefore, the marking "This product contains fresh produce that may have been grown in any of the following countries: Costa Rica, Guatemala, and/or the United States " is not acceptable for purposes of 19 U.S.C. 1304.
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 Bruce N. Hadley, Jr. at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division