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NY K81363




November 28, 2003
CLA-2-7:RR:NC:2:228 K81363

CATEGORY: CLASSIFICATION

TARIFF NO.: 0703.20.0020; 2005.90.9700

Mr. Victor Llarena
Florida National Brokers, Inc.
7100 NW 12 Street
Miami, FL 33126

RE: The tariff classification and country of origin marking of garlic from Colombia

Dear Mr. Llarena:

In your letter dated November 19, 2003, on behalf of Hemisphere Foods, LLC, you requested a tariff classification ruling.

The merchandise is described as fresh garlic, minced garlic in oil, and chopped garlic in oil. All products will be prepared from fresh garlic bulbs grown in China, Spain, Chile, Argentina, and other countries. In Colombia, the bulbs will be separated into cloves and peeled. First quality cloves will be packed into containers for food service or retail markets, and sold in fresh condition. The lesser quality garlic cloves will be minced or chopped, mixed with olive oil, and packed into plastic or glass containers, principally for retail sale.

The applicable subheading for the fresh peeled garlic cloves will be 0703.20.0020, Harmonized Tariff Schedule of the United States (HTS), which provides for garlicfresh or chilledfresh whole peeled cloves. The rate of duty will be 0.43 cents per kilogram.

The applicable subheading for the minced and chopped garlic in oil will be 2005.90.9700, HTS, which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozenother vegetablesother. The rate of duty will be 11.2 percent ad valorem.

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 to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

The "country of origin" is defined in 19 CFR 134.1(b) as "the country of manufacture, production, or growth of any article of foreign origin entering the United States. 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 the meaning of this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin." For tariff purposes, the courts have held that a substantial transformation occurs if a new and different article emerges having a distinctive name, character or use. AnheuserBusch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982).

In this case, the separation into cloves, peeling, and packing for retail sale does not result in a substantial transformation. The peeled cloves do not have a distinctive name, character or use different from the fresh garlic bulbs. The processing of the garlic bulbs into minced and chopped garlic in oil does result in a substantial transformation. Therefore, for marking purposes, the fresh peeled garlic cloves are products of the country where the bulbs were grown – China, Spain, Chile, Argentina, etc. The minced and chopped garlic in oil is a product of Colombia.

The fresh peeled garlic cloves will not be eligible for duty free treatment under the Andean Trade Preference Act (ATPA). The minced and chopped garlic in oil, classified in subheading 2005.90.9700, HTS, which are products of Colombia, are entitled to duty free treatment under the APTA, upon compliance with all applicable regulations.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A list of AD/CVD proceedings at the Department of Commerce (DOC) and their product coverage can be obtained from the DOC website at: http://ia.ita.doc.gov, or you may write to them at the U.S. Department of Commerce, International Trade Administration, Office of Antidumping Compliance, 14th Street and Constitution Avenue, N.W. Washington, DC 20230. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs.

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 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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