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NY 806892




March 15, 1995

CLA-2-7:S:N:N7:228 806892

CATEGORY: CLASSIFICATION

TARIFF NO.: 0704.90.9000

Ms. Helen Setterington
Family Tradition Foods, Inc.
P.O. Box 869
Wheatley, Ontario Canada N0P 2P0

RE: The tariff classification, status under the North American Free Trade Agreement (NAFTA), and country of origin marking of frozen vegetable blends from Canada; Article 509

Dear Ms. Setterington:

In your letters dated December 20, 1994 and February 1, 1995 you requested a ruling on the status of frozen vegetable blends from Canada under the NAFTA.

Two products are described in your letter. International Blend consists of 34 percent whole baby carrots, 33 percent broccoli florets, and 33 percent mini cob corn. California Supreme is composed of 40 percent whole green beans, 30 percent whole baby carrots, and 30 percent mini cob corn. The green beans are a product of Canada, the broccoli is a product of Mexico, the carrots are products of Israel, and the corn is a product of China. The broccoli, carrots, and corn are imported into Canada in bulk containers, in frozen condition. In Canada, the blend is prepared by placing the required number of pounds of each ingredient into a mixer, and then repacking the product into poly bags containing 2 kilograms, net weight. No other ingredients are added to the vegetable products.

The applicable tariff provision for the frozen vegetable blends will be 0710.90.9000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for vegetables (uncooked or cooked by steaming or boiling in water), frozen... mixtures of vegetables...other. The general rate of duty will be 16.9 percent ad valorem.

The merchandise does not qualify for preferential treatment under the NAFTA because one of the non-originating materials used in the production of the goods (i.e., the carrots) will not undergo the change in tariff classification required by General Note 12(t)/7, HTSUSA.

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 the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs 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 interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994 to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements of these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).

Section 134.1(b) of the interim 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 interim 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 interim 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 interim regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

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.

You state that the imported vegetable blends are processed in a NAFTA country, Canada, prior to being imported into the U.S. Since Canada is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported vegetable blend is a "good of a NAFTA country", and thus subject to the NAFTA marking requirements.

Part 102 of the interim 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 interim 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 interim regulations to the facts of this case, we find that the imported International Blend is a good of Israel, Mexico, and China, and the California Supreme is a good of Israel, Canada, and China for marking purposes. The processing performed on the foreign materials incorporated into the goods (i.e., weighing, mixing, and packaging the carrots, broccoli, and corn) are non- qualifying operations, as described in section 102.17(c). The foreign materials will not, therefore, undergo the necessary change in tariff classification set out in section 102.20. In accordance with section 102.11(c), we find that each material in the good merits equal consideration for determining the good's essential character.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

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.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Office of Regulations and Rulings, U.S. Customs Service, 1301 Constitution Ave. N.W., Franklin Court, Washington, D.C. 20229.

Sincerely,

Jean F. Maguire
Area Director

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