NY B80537 - THE COUNTRY OF ORIGIN MARKING OF JALAPENO PEPPERS; ARTICLE 509 - United States International Trade Commision Rulings

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NY B80537

January 3, 1997

MAR-2 RR:NC:2:228 B80537

CATEGORY: MARKING

Mr. Franz Felhaber
F.C. Felhaber & Company, Inc.
1421 Lee Trevino
El Paso, TX 79936

RE: THE COUNTRY OF ORIGIN MARKING OF JALAPENO PEPPERS; ARTICLE 509

Dear Mr. Felhaber:

This is in response to your letters dated September 5, 1996, October 21, 1996, and December 10, 1996, on behalf of your client, I.M.A Trading, El Paso, TX, requesting a ruling on the country of origin marking for imported jalapeno peppers.

Your client, a chili pepper broker, imports fresh or chilled, whole jalapeno peppers from Mexico, packed in net-type polyethylene sacks, each sack containing from 20-25 kilograms, net weight. Neither the peppers nor the net sacks are marked with the country of origin of the vegetable. The imported peppers are sold to food processors, who remove the peppers from their sacks, produce a "mash sauce or dice" and sell this semi-finished commodity to other food processors, who use it to make Louisiana-style hot sauces. The net sacks, removed by the first processors, are returned to I.M.A. Trading, who returns them to Mexico.

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 appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the 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 134.1(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.

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 134.44, 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 134.1(d), Customs Regulations, provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good in the form in which it was imported. If an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article.

Certain articles, such as fresh vegetables, are excepted from marking under 19 U.S.C. 1304(a)(3)(J) and section 134.33, Customs Regulations (19 CFR 134.33). However, if such articles are imported in a container, the outermost container in which the article reaches the ultimate purchaser must be marked to indicate the origin of its contents.

Applying the NAFTA marking rules to the specific situation you have presented, we find that the food processors, i.e., I.M.A.'s customers, are the ultimate purchasers of the jalapeno peppers, and the outermost containers in which the peppers reach the ultimate purchasers are the net sacks. Therefore, the net sacks must be marked to indicate Mexico as the vegetable's country of origin.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 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 Stanley Hopard at 212-466-5760.

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, Commercial Rulings Division, Headquarters, U.S. Customs Service, 1301 Constitution Ave., NW, Franklin Court, Washington, DC 20229.

Sincerely,

Gwenn Klein Kirschner
Chief, Special Products

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