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NY C84554





March 3, 1998

MAR-2 RR:NC:2:228 C84554

CATEGORY: MARKING

Mr. C. Kent Moyer
Frozen Specialties, Inc.
720 Barre Road
P.O. Box 410
Archbold, OH 43502-0410

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED FOOD PRODUCTS; ARTICLE 509

Dear Mr. Moyer:

This is in response to your letters dated January 12, 1998 and February 12, 1998, requesting a ruling on the country of origin marking for "stuffed sandwiches," imported in bulk and repacked into retail containers in the United States. A marked sample of the retail container was submitted with your first letter.

The "stuffed sandwiches" are frozen, rectangular-shaped, fully-baked dough products, filled with a combination of meat, cheese, eggs, vegetables, sauce, etc., each sandwich weighing approximately 4.5 ounces. The sandwiches will be manufactured in Canada from ingredients sourced in the United States and Canada, packed in 40-pound bulk boxes and shipped to Frozen Specialties, Inc., where they will be repackaged into 9-ounce retail cartons, two sandwiches in each carton. The front panel of the carton bears a description of the product and an illustrative serving suggestion. The carton's rear panel provides nutrition information, re-heating instructions, an ingredients listing, and the name and geographical location (Chicago, IL) of the United States distributor. On one of the end flaps, the word "Canada" has been embossed in an area near the bar code.

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.

Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d) of the 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 is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. However, since the stuffed sandwiches are not imported in their marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the port director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized in the discretion of the port director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, assuming that the port director is satisfied that the imported stuffed sandwiches will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the port director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported stuffed sandwiches will not be required.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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 of the retail containers for the imported stuffed sandwiches, as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. The embossed "Canada" is not conspicuous, and could not be located or read by an ultimate consumer without strain. Its location on the end flap is not in close proximity to the U.S. geographical location, Chicago, IL, found on the rear panel, and it is not preceded by "Made in," "Product of," or words of similar meaning.

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

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.

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,

Robert B. Swierupski
Director,

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