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NY J84569




June 5, 2003

CLA-2-22:RR:NC:SP:232 J84569

CATEGORY: CLASSIFICATION

TARIFF NO.: 2202.10.0060; 2202.90.3500; 2202.90.3600

Ms. Valerie D. Lewis
Safeway Inc.
5918 Stoneridge Mall Road
Pleasanton, CA 94588-3229

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of aseptic fruit drinks from Canada; Article 509

Dear Ms. Lewis:

In your letter dated May 8, 2003, on behalf of Safeway Inc., you requested a ruling on the status of aseptic fruit drinks from Canada under the NAFTA. Your request also asks for the country of origin for marking purposes of the products.

A sample was included with your request. Descriptive information and prototype product labels were included with your initial request dated March 13, 2003. The subject merchandise consists of four types of fruit drink products: Apple Juice, Orange Juice, Mixed Berry Juice, and Fruit Punch. Apple Juice is stated to contain 0.0500 percent ascorbic acid, 16.5000 percent apple concentrate (low acid 70 Brix), 0.4800 apple essence and 82.9700 percent water. The apple concentrate and apple essence are products of the United States, the ascorbic acid is a product of China, and the water is a product of Canada.

Orange Juice contains 0.0080 percent ascorbic acid, 18.4600 percent orange concentrate (65 Brix), 0.2180 percent calcium citrate and 81.3140 percent water. The orange concentrate is from Mexico and/or the United States, the calcium citrate is from the United States the ascorbic acid is from China and the water is from Canada.

Mixed Berry Juice contains 15.63000 percent apple concentrate (70 Brix), 2.0000 percent white grape concentrate (68 Brix), 0.0638 percent blackberry concentrate (65 Brix), 0.1500 percent raspberry concentrate (65 Brix), 0.2180 percent calcium citrate, 0.0430 percent ascorbic acid, 0.0750 percent citric acid, 0.1000 percent mixed berry flavor 556888, and 81.7202 percent water. The apple concentrate and ascorbic acid are from China, the white grape concentrate, blackberry concentrate, calcium citrate and citric acid are from the United States, the raspberry concentrate, mixed berry flavor and water are from Canada.

Fruit Punch contains 12.8450 percent apple concentrate (70 Brix), 2.3980 percent pear concentrate (70 Brix), 1.2160 percent red grape concentrate (68 Brix), 0.4780 percent pineapple concentrate (65 Brix), 0.0410 percent ascorbic acid, 0.02080 percent calcium citrate, 0.1430 percent citric acid, 0.1130 percent fruit punch flavor 941386, 0.1000 percent cherry flavor NV 22054 and 82.4560 percent water. The apple concentrate and ascorbic acid are from China, the pear concentrate is from Argentina, the red grape concentrate, calcium citrate, citric acid and cherry flavor are from the United States, the pineapple concentrate is from the United States and/or Thailand and/or the Philippines, the fruit punch flavor and the water are from Canada.

All of the above products will be packaged in 6.75 fluid ounce as the aseptic containers with an attached straw. The containers will be packaged in clear plastic wrapped multi-packs, with ten containers to a pack. The merchandise will be sold to consumers at various supermarkets. The aseptic containers will be produced in the United States or Mexico. The straw will be produced in the United States or Indonesia, and the shipping cartons will be made and printed in the United States.

The prototype label indicates that the bottom right side of the aseptic container, directly under the ingredient listing, is marked “DISTRIBUTED BY (S) SAFEWAY INC. P.O. BOX 99 PLEASANTON, CA 94566-0009.” This is followed by a telephone number, web site address, and then the words “PROCESSED AND PACKAGED IN CANADA. SEE BOX TOP FOR CONCENTRATE SOURCE.” The top of the box will be marked “JUICE CONC.FROM [ISO Code(s)].” The clear plastic wrapping, used to hold the 10 aseptic containers is marked “DISTRIBUTED BY (S) SAFEWAY INC. P.O. BOX 99 PLEASANTON, CA 94566-0009.” This is followed by a telephone number, web site address, and then the words “PROCESSED AND PACKAGED IN CANADA.”

The applicable subheading for the Mixed Berry Juice and Fruit Punch will be 2202.10.0060, Harmonized Tariff Schedule of the United States (HTS), which provides for Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoredOther. The duty rate will be 0.2 cents per liter

The applicable subheading for the orange juice will be 2202.90.3500, Harmonized Tariff Schedule of the United States (HTS), which provides for Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: Other: Fruit or vegetable juices, fortified with vitamins or minerals: Orange juice: Other. The duty rate will be 7.85 cents per liter.

The applicable subheading for the apple juice will be 2202.90.3600, Harmonized Tariff Schedule of the United States (HTS), which provides for Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: Other: Fruit or vegetable juices, fortified with vitamins or minerals: Other: Juice of any single fruit or vegetable. The duty rate will be free.

Each of the non-originating materials used to make the Mixed Berry Juice, Fruit Punch and Orange Juice have satisfied the change in tariff classification required under HTSUSA General Note 12(t)/22. The Mixed Berry Juice, Fruit Punch and Orange Juice will be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

It is noted that the Apple Juice product is subject to a free rate of duty under subheading 2202.90.3600, HTS, therefore, there is no need to consider a rate of duty under the NAFTA.

Your inquiry also requests 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 submitted with your letter for review.

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 aseptic fruit drink products are 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 aseptic fruit drink products are “goods 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 presented, we find that for the Mixed Berry Juice and the Fruit Punch, the country of origin for marking purposes is Canada, noting Section 102.20(d). In the case of the Apple Juice, the country of origin for marking purposes is the United States, noting Section 102.11(b)(1). In the case of the Orange Juice, the country of origin for marking purposes is the country or countries producing the orange juice concentrate (65 Brix), Mexico and/or the United States, noting Section 102.11(b)(1). When the country of origin of the subject merchandise is the United States, the products are excepted from the country of origin marking requirements.

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.

In the case of the Orange Juice, when the country of origin is Mexico, the product must be marked “This product contains foreign concentrate from Mexico,” or “Juice concentrate from Mexico” in close proximity to the words “DISTRIBUTED BY (S) SAFEWAY INC. P.O. BOX 99 PLEASANTON, CA 94566-0009.” In the case of the Mixed Berry Juice and the Fruit Punch, the products must be marked ‘Made in Canada” or “Product of Canada” in close proximity to the words “DISTRIBUTED BY (S) SAFEWAY INC. P.O. BOX 99 PLEASANTON, CA 94566-0009.” It is not acceptable to abbreviate the word “concentrate” to “conc.” In addition, the “ISO Code” cannot be used to designate the country of origin.

As noted above, the country of origin for marking purposes of the Mixed Berry Juice and the Fruit Punch is Canada. Therefore, there is no need to identify the origin of the juice concentrates in the products.

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

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

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 646-733-3031.

Sincerely,

Robert B. Swierupski
Director,

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