NY D82214 - COUNTRY OF ORIGIN MARKING OF IMPORTED HERSHEY'S BITES; ARTICLE 509 - United States International Trade Commision Rulings

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NY D82214

October 6, 1998

MAR-2 RR:NC:SP:232 D82214

CATEGORY: MARKING

Ms. Mary Louise W. Porter
Hershey Foods Corporation
Law Department
100 Crystal A Drive
Hershey, PA 17033-0810

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED HERSHEY'S BITES; ARTICLE 509

Dear Ms. Porter:

This is in response to your letter dated September 10, 1998 requesting a ruling on the country of origin marking requirements for an imported article which is processed in a NAFTA country prior to being imported into the U.S. A sample was submitted with your letter for review.

The subject merchandise is stated to contain 82.83 percent white chocolate, 15.78 percent chocolate cookie bits, and small quantities of syrup, crystal gum, sugar and glaze. The product will be produced in Mexico from ingredients from the United States and Mexico. White chocolate produced in the U.S. will be shipped to Mexico in bulk containers in the following shapes: 14 gram snack size bars, 1.5 ounce bars, regular "KISS" shapes and 0.5 ounce "nugget" shapes. Chocolate cookie bits produced in the U. S. will also be shipped to Mexico. Once in Mexico, the white chocolate will be melted, blended with the chocolate cookie bits and molded into spherical shapes, which will be coated with additional white chocolate. The coated spheres will be polished with a combination of syrup, crystal gum, sugar and glaze all of which will be produced in Mexico. The final product will be packaged in 5.3 ounce retail bags, 12.5 ounce retail pouches, or bulk containers of various sizes and shipped to the U.S.

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 134.1(b) of the 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 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 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 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.

You state that the imported Hershey's Bites are processed in a NAFTA country "Mexico" prior to being imported into the U.S. Since, "Mexico" 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 product is a good of a NAFTA country", and thus subject to the NAFTA marking requirements.

Part 102 of the 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 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 regulations to the facts of this case, we find that the imported Hershey's Bites are goods of a "Mexico" for marking purposes, since the product satisfies the requirements of Section 102.20(d). Therefore, the imported merchandise must be marked "Product of Mexico" or "Made in Mexico".

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 John Maria at 212-466-5730.

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, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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