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NY 804679

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December 14, 1994

CLA-2-21:S:N:N7:228 804679

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.6995

Ms. Elena Ruiz
Spain 3000
6767 Collins Avenue Suite 1506
Miami Beach, FL 33141

RE: The tariff classification and country of origin marking of a food product from Spain

Dear Ms. Ruiz:

In your letters dated October 14, 1994 and November 21, 1994, you requested a tariff classification and country of origin marking ruling. Ingredients breakdowns and a description of the manufacturing process accompanied your November letter. A sample of the packaging and labelling was submitted with your October correspondence.

The product is a frozen food called a "Spanish Tortilla," which you further describe as "basically a potato and egg omelette." The article will be produced in four different sizes - family, traditional, baguette, and burger - each composed of the same ingredients, in almost identical proportions: 45 percent fried potatoes, 35 or 38 percent pasteurized eggs, 9 or 10 percent fried onions, 7 or 9 percent olive oil, and one percent salt. The omelettes are prepared by frying sliced potatoes and onions, combining them with the remaining ingredients, frying on both sides in a circular-shaped pan, freezing, and packing in polyethylene bags in sealed cartons or boxes for non-retail purchasers.

The applicable subheading for this product will be 2106.90.6995, Harmonized Tariff Schedule of the United States (HTS), which provides for food preparations not elsewhere specified or included...other...other...frozen. The rate of duty will be 10 percent ad valorem.

The sample package you have submitted is a printed, corrugated cardboard box. The two larger panels provide the logo and identify the size of omelette contained in the package. One of the smaller panels bears a check-off list of the possible tortilla varieties that may be in the package, and the other small panel contains the logo, producer's name and address, net weight, storage information, and lot number. All of the information printed on the box is in Spanish. On one of the larger panels, a prototype "Nutrition Facts" label is glued over some of the printed information. With one exception, all of the data on this label is in English. The exception is the information following the words "manufactured by:" The producer's name and the country of origin are written in Spanish.

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.

As provided in section 134.41(b), Customs 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.

With regard to the permanency of a marking, section 134.41(a), Customs 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, Customs 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.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in any case in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

The proposed marking for the package of imported "Spanish tortillas" or omelettes, as described above, is not conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Other than the prototype label, there is no indication of the country of origin on the printed box. In addition, "Espana," the Spanish name for the country of origin, appearing on the prototype label, is not acceptable for marking purposes. "Spain," the English name, must be used. The label, as presented, must either delete "Espana" and replace it with "Spain," or add the word "Spain" immediately following "Espana," in the same size type. Alternately, the phrase "product of Spain" or "made in Spain" may be added to the label, in close proximity to, and in the same size type as the "distributed by" line.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director
New York Seaport

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