Mr. Antonio Fernandez
Del Monte Fresh Produce N.A., Inc.
214 Sevilla Avenue
Coral Gables, FL 33134
RE: The tariff classification, country of origin, and country of origin marking of fruit mixtures from Canada; Article 509
Dear Mr. Fernandez:
In your letter dated September 9, 2015 you requested a tariff classification, country of origin, and marking ruling.
Ingredients breakdowns and images of four products were included in your inquiry, and additional information was provided via eMail dated September 24, 2015. “Fruit Mix,” Item #12103, is a fresh-cut blend of approximately 44 percent pineapple chunks, 23 percent cantaloupe chunks, 23 percent honeydew melon chunks, and 10 percent whole grapes. “Trio Spears,” Item #16123, is fresh-cut fruit strips of approximately 34 percent pineapples, 33 percent cantaloupe, and 33 percent honeydew melon. “Seasonal Blend With Berry,” Item #XX10019, is a fresh-cut blend of fruit chunks with blueberries, containing approximately 34 percent pineapples, 33 percent mangoes, 16 percent cantaloupe, 11 percent honeydew melon, and 6 percent blueberries. “Fruit Salad With Kiwi,” Item #11846, is a fresh-cut blend of fruit chunks with whole grapes, containing approximately 27 percent watermelon, 22 percent pineapples, 18 percent cantaloupe, 16 percent grapes, 10 percent honeydew melon, and 7 percent kiwi.
The pineapples will grow in and be imported from Costa Rica. The cantaloupes, honeydew melons, and watermelons will be from Costa Rica, Guatemala, or the United States (U.S.). The kiwis will be from New Zealand. The grapes will be from Chile, Peru, Mexico, or the U.S. The mangoes will be from Costa Rica, Peru, Brazil, Ecuador, or Mexico. The blueberries will be from Chile, Argentina, Canada, or the U.S. In Canada, the fruits will be cleaned, peeled, sliced or cut, and packaged in tamper-evident plastic containers in various sizes. The imported products will be sold at various grocery stores and supermarket chains.
The provided images show each container carries a sticker. The four stickers differ in sizes and their contents. Some stickers are illegible. The sticker of the Trio Spears only contains the name of the product, net weight, best date to consume, and lot number, and does not contain the country of origin. Fruit Mix includes all the information mentioned before, plus the countries of origin. The other two contain all the above information and a bar code. In your letter, you proposed an example of a country of origin labeling, which reads “This product contains fresh produce that may have been grown in any of the following countries: Costa Rica, Guatemala, and/or the United States.”
The applicable subheading for the “Fruit Mix,” Item #12103, and the “Trio Spears,” Item #16123, if entered during the period from December 1, in any year, to the following May 31, inclusive, will be 0807.19.7000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for melons (including watermelons) and papayas (papaws), fresh . . . melons . . . other. The general rate of duty will be 5.4 percent ad valorem. If entered at any other time, the applicable subheading will be 0807.19.8000, HTSUS. The general rate of duty will be 28 percent ad valorem.
The applicable subheading for the “Seasonal Blend With Berry,” Item #XX10019, depending on the species of blueberries, will be 0810.40.0024, 0810.40.0026, or 0810.40.0029, HTSUS. Subheading 0810.40.0024, HTSUS, provides for other fruit, fresh . . . cranberries, blueberries and other fruits of the genus Vaccinium . . . blueberries . . . wild. Subheading 0810.40.0026, HTSUS, provides for cultivated, certified organic blueberries. Subheading 0810.40.0029, HTSUS, provides for other cultivated blueberries. In all cases, the general rate of duty will be free.
The applicable subheading for the “Fruit Salad With Kiwi,” Item #11846, will be 0810.50.0000, HTSUS, which provides for other fruit, fresh . . . kiwifruit. The general rate of duty will be free.
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, three of the labels are difficult to read due to the small font on transparent medium. The other transparent label does not contain a country of origin of the product. Therefore, the proposed markings of the imported fruit mixes do not meet the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, and are not acceptable countries of origin markings. 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.
In regard to the use of “Costa Rica, Guatemala, and/or the United States” as part of the country of origin marking, 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 ww.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 [email protected].
Gwenn Klein Kirschner
National Commodity Specialist Division