NY E88543 - COUNTRY OF ORIGIN MARKING OF IMPORTED “KOKOHEART 37”; ARTICLE 509 - United States International Trade Commision Rulings

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NY E88543

October 27, 1999

MAR-2 RR:NC:SP:232 E88543

CATEGORY: MARKING

Mr. Jeffrey R. Willson
Willson International Ltd.
6725 Airport Road, Suite 101
Mississauga, Ontario L4V 1V2

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED “KOKOHEART 37”; ARTICLE 509

Dear Mr. Willson:

This is in response to your letter dated September 16, 1999, on behalf of Canamera Foods in Oakville, Ontario, 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 marked sample was not submitted with your letter for review.

Information was submitted with your initial request dated July 27, 1999. The subject merchandise is “Kokoheart 37”, which is produced from coconut oil. You state that crude coconut oil from Indonesia or Malaysia is shipped to Canada, where it is refined, bleached and hydrogenated. A small amount of citric acid (15 ppm) is also added as a processing aid or chelating agent. The hydrogenated coconut oil is packaged into 20 kilogram cubes and shipped to the United States, where it is used in the production of candy, biscuits and cream fillings.

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 “Kokoheart 37” is 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 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 “Kokoheart 37” is a good of Indonesia and/or Malaysia for marking purposes. Noting Section 102.11 (a) (3), the crude coconut oil does not undergo the applicable change in tariff classification set out in Section 102.20 by the processing in Canada. The crude coconut oil is the material that imparts the essential character of the product, noting Section 102.11 (b) (1).

Your inquiry asks whether the marking “Coconut oil from Indonesia and/or Malaysia” and “Processed in Canada” is an acceptable country of origin marking for the “Kokoheart 37.”

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 imported “Kokoheart 37” , as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported merchandise. Marking such as “Further Processed in Canada from Product Made in Indonesia”, or “Product of Malaysia Further Processed in Canada”, would be acceptable country of origin markings, provided the same size lettering is used.

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 212-637-7059.

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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