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.

Whole Peeled Pineapples are said to contain 100 percent fresh peeled pineapples. The pineapples will be grown in Costa Rica and Mexico.

Pineapple Chunks and Pineapple Spears are said to contain 100 percent fresh cut and peeled pineapple chunks and spears. The pineapples will be grown in Costa Rica.

Mango Spears are said to contain 100 percent fresh peeled and cut mango spears. They will be grown in Peru, Mexico, and Brazil.

Cantaloupe Chunks are said to contain 100 percent fresh peeled and cut cantaloupe chunks. They will be grown in Honduras, Guatemala, Mexico, Canada, Costa Rica, and the United States.

Watermelon Chunks and Spears are said to contain 100 percent fresh cut and peeled watermelon chunks and spears. The watermelons will be grown in Mexico and Costa Rica.

Ambrosia Apple Slices are said to contain 100 percent fresh sliced apples. They will be grown in Canada, Chile, New Zealand, and South Africa.

The country of origin of each fruit listed above will change depending on the seasonality and time of year that they will be imported. The fruit will be imported chilled and will be sold at various grocery stores and supermarket chains.

In your letter, you suggested tariff classification for the Whole Peeled Pineapples under 0804.30.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for dates, figs, pineapples ... fresh or dried ... pineapples ... reduced in size. Based on the product description, the product will be classified elsewhere.

The applicable subheading for the Whole Peeled Pineapples will be 0804.30.4000, HTSUS, which provides for dates, figs, pineapples ... fresh or dried ... pineapples ... in crates or other packages. The general rate of duty will be 1.1 cents per kilogram.

The applicable subheading for the Pineapple Chunks and Pineapple Spears 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 Mango spears will be 0804.50.4055, Harmonized Tariff Schedule of the United States (HTSUS), which provides for dates, figs, pineapples, avocados guavas, mangoes and mangosteens, ... fresh or dried ... mangoes ... fresh: if entered during the period from September 1, in any year, to the following May 31, inclusive ... other.. The general rate of duty will be 6.6 cents per kilogram. If entered at any other time, the applicable subheading will be 0804.50.6055, HTSUS. The general rate of duty will be 6.6 cents per kilogram.

The applicable subheading for cantaloupe chunks will be 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.

In your letter, you suggested tariff classification for the Ambrosia Apple Slices under 0808.10.0030, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Apples, pears, and quinces, fresh: ... Apples ...valued not over 22 cents/kg. Based on the product description, the product will be classified elsewhere.

The applicable subheading for the Ambrosia Apple Slices will be 0808.10.0065, HTSUS, which provides for Apples, pears, and quinces, fresh: ... Apples ...other. The general rate of duty will be Free.

In your letter, you suggested tariff classification for the Watermelon Chunks and Spears under 0807.11.4010, Harmonized Tariff Schedule of the United States (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. Based on the product description, the product will be classified elsewhere.

The applicable subheading for the Watermelon Chunks and Spears will be 0807.11.3090, 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 ... other. The general rate of duty will be 9 percent ad valorem. If entered at any other time, the applicable subheading will be 0807.11.4090, HTSUS. The general rate of duty will be 17 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 https://hts.usitc.gov/current.

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 will be the country or countries of each fruit product, depending on the time of year that they will be imported.

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 fruits 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 country or 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