NY B81970 - THE COUNTRY OF ORIGIN MARKING OF JALAPENO PEPPERS; ARTICLE 509 - United States International Trade Commision Rulings

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NY B81970

February 26, 1997

MAR-2 RR:NC:2:228 B81970

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 January 6, 1997, and January 31, 1997, on behalf of your client, Cervantes Enterprises, Vado, NM, requesting a ruling on the country of origin marking for imported jalapeno peppers.

Your client is the purchaser and importer of fresh or chilled, whole jalapeno peppers. The peppers are grown and harvested in Mexico, and shipped directly from the Mexican suppliers to Cervantes' warehouse, 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. After receipt, Cervantes will remove the peppers from their sacks, and process them into "pepper mash" and "brined pepper products" that he, in turn, sells to other food processors. The net sacks are returned 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). If such articles are imported in a container, the outermost container in which the article ordinarily reaches the ultimate purchaser must be marked to indicate the origin of its contents (19 U.S.C. 1304(b), section 134.22(a), and 134.33, Customs Regulations). However, containers of goods of a NAFTA country within the exceptions set forth in paragraphs (e), (f), (g), (h), (i), (p), or (q) of section 134.32, Customs Regulations, are not required to be marked (section 134.22(e)(1) Customs Regulations).

Applying the NAFTA marking rules to the specific situation you have presented, we find that the fresh or chilled jalapeno peppers are goods of a NAFTA country, and Cervantes Enterprises, the importer, is the ultimate purchaser of the peppers. The peppers are excepted from country of origin pursuant to section 134.33, Customs Regulations, and the net sacks, the containers of the peppers, are also excepted from country of origin marking pursuant to sections 134.22(e)(1) and 134.32(g), Customs Regulations.

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.

Sincerely,

Gwenn Klein Kirschner
Chief, Special Products

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