CLA-2-08:OT:RR:NC:N2:228

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 products 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 fresh-cut fruit products were included in your inquiry, and additional information was provided via eMail dated September 24, 2015. “Party Fruit Tray With Grape,” Item #XX3117, is an assortment of fresh-cut fruit chunks in an oblong plastic container where a small bowl of whole grapes stands in the center. The assortment is composed of two piles of pineapple chunks (34 percent), a pile of cantaloupe chunks (22 percent), a pile of seedless watermelon chunks (22 percent), and a pile of honeydew melon chunks (22 percent), arranged one pile next to the other and surrounded around the bowl in the container. “Pine Salad,” Item #12196, is a fresh-cut blend of fruit chunks with whole grapes, containing 31 percent pineapples, 20 percent cantaloupe, 20 percent watermelon, 20 percent honeydew melon, and 9 percent grapes. “Berry Mix,” Item #11844, consists of 90 percent strawberries scattered with 10 percent blueberries. “Gourmet Bowl,” Item #12156, is a fresh-cut blend of fruit chunks with whole grapes, containing 42 percent pineapples, 30 percent cantaloupe, 11 percent mangoes, 11 percent strawberries, and 6 percent grapes.

The pineapples will grow in and be imported from Costa Rica. The cantaloupes, honeydew melons, and watermelons will products of Costa Rica, Guatemala, or the United States (U.S.). The grapes will be a product of Chile, Peru, Mexico, or the U.S. The mangoes will be a product of Costa Rica, Peru, Brazil, Ecuador, or Mexico. The blueberries will be a product of Chile, Argentina, Canada, or the U.S. The strawberries will be sourced from 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 one container has no label and the other three each carry a sticker. The contents of the stickers are too small to allow us to closely examine them. 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.”

In your letter, you suggested the “Party Fruit Tray,” Item #XX3117, be classified in subheading 0810.40.0024 or 0810.40.0029, Harmonized Tariff Schedule of the United States (HTSUS), the provisions for fresh blueberries (wild or cultivated), based on the General Rules of Interpretation (GRI) 3(c). We disagree. The product does not contain any blueberries. It cannot be classified under these provisions. In addition, the “Party Fruit Tray” is not a mixture, composite good, or set for classification purposes. All components of the “Party Fruit Tray With Grape” will be classified separately.

The applicable subheading for the pineapple chunks in the “Party Fruit Tray,” Item #XX3117, will be 0804.30.6000, HTSUS, which provides for dates, figs, pineapples ... fresh or dried ... pineapples ... reduced in size. The general rate of duty will be 0.44 cents per kilogram.

The applicable subheading for the seedless watermelon chunks in the “Party Fruit Tray,” Item #XX3117, if entered during the period from December 1, in any year, to the following May 31, inclusive, will be 0807.11.3010, HTSUS, which provides for melons (including watermelons) and papayas (papaws), fresh . . . melons . . . watermelons ... if entered during the period from December 1, in any year, to the following May 31, inclusive ... seedless. The general rate of duty will be 9 percent ad valorem. If entered at any other time, the applicable subheading will be 0807.11.4010, HTSUS. The general rate of duty will be 17 percent ad valorem.

The applicable subheading for the cantaloupe chunks in the “Party Fruit Tray,” Item #XX3117, if entered during the period from August 1 to September 15, inclusive, in any year, will be 0807.19.1000, HTSUS, which provides for melons (including watermelons) and papayas (papaws), fresh . . . melons . . . other ... cantaloupes. The general rate of duty will be 12.8 percent ad valorem. If entered at any other time, the applicable subheading will be 0807.19.2000, HTSUS. The general rate of duty will be 29.8 percent ad valorem.

The applicable subheading for the honeydew melon chunks in the “Party Fruit Tray,” Item #XX3117, and “Pine Salad,” Item #12196, if entered during the period from December 1, in any year, to the following May 31, inclusive, will be 0807.19.7000, HTSUS, which provides for melons (including watermelons) and papayas (papaws), fresh . . . melons . . . other ... 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 grapes in the “Party Fruit Tray,” Item #XX3117, if entered during the period from February 15 to March 31, inclusive, in any year, will be 0806.10.2000, HTSUS, which provides for grapes, fresh or dried ... fresh. The general rate of duty will be $1.13 per cubic meters. If entered during the period from April 1 to June 30, inclusive, in any year, they will be classified in subheading 0806.10.4000, HTSUS. The general rate of duty will be free. If entered at any other time, they will be classified in subheading 0806.10.6000, HTSUS. The general rate of duty will be $1.80 per cubic meters.

In your letter, you suggested the “Berry Mix,” Item #11844, be classified in subheading 0810.40.0024 or 0810.40.0029, HTSUS, the provisions for fresh blueberries (wild or cultivated), based on the GRI 3(c). We disagree. The product can be classified according to GRI 3(b). In consideration of the bulk, weight, and value of each component of the “Berry Mix,” its essential character is imparted by the strawberries.

The applicable subheading for the “Berry Mix,” Item #11844, and the “Gourmet Bowl,” Item #12156, if entered during the period from June 15 to September 15, inclusive, in any year, will be 0810.10.2000, HTSUS, which provides for other fruit, fresh . . . strawberries. The general rate of duty will be 0.2 cents per kilogram. If entered at any other time, the applicable subheading will be 0810.10.4000, HTSUS. The general rate of duty will be 1.1 cents per kilogram.

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 countries of origin of the “Party Fruit Tray,” the “Pine Salad,” and the “Gourmet Bowl” will be the countries of origin of all ingredients that each fruit product 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 countries of origin of the three fruit products will change accordingly. The country of origin of the “Berry Mix will be the United States.

Goods of the 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. See 19 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 marked stickers are found to be difficult to read due to the letters are printed in small font and on the transparent stickers and the “Party Fruit Tray” does not bear a label. Therefore, the proposed markings of the imported fruit products do not meet the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, and are not acceptable countries of origin marking for the imported products. 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]

Sincerely,

Gwenn Klein Kirschner
Director
National Commodity Specialist Division