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NY R01576





March 9, 2005

MAR-2 RR:NC:SP:232 R01576

CATEGORY: MARKING

Mr. Bob Forbes
R.O.E. Logistics
660 Bridge Street
Montreal, Quebec
Canada H3K 3K9

RE: COUNTRY OF ORIGIN MARKING OF COCOA BEANS, COCOA NIBS, COCOA LIQUOR, COCOA POWDER; ARTICLE 509

Dear Mr. Forbes:

This is in response to your letter dated March 3, 2005, on behalf of Barry Callebaut Canada Inc., requesting a ruling on the country of origin marking requirements of cocoa beans, cocoa nibs, cocoa liquor and cocoa powder processed in Canada. Marked samples were not submitted with your letter for review.

Information was submitted with your initial request dated February 11, 2005, and in a telephone conversation with this office on March 8, 2005. You indicate that cocoa beans will be imported into Canada from Africa, Indonesia, Mexico and Nigeria. The cocoa beans will be roasted in Canada. They may also be processed in Canada into cocoa nibs, cocoa liquor and cocoa powder. The cocoa beans, cocoa nibs, cocoa liquor and cocoa powder will be shipped to the United States. The products shipped to the United States may be produced in Canada from cocoa beans from a single country, or from mixed cocoa beans from several countries.

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. 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.

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.

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 cocoa beans, cocoa nibs and cocoa liquor are goods of Africa, Indonesia, Mexico or Nigeria for marking purposes, noting the requirements of Section 102.11 (b) (1). When produced from mixed cocoa beans, all of the countries contributing to the mix must be shown. The cocoa powder is a good of Canada for marking purposes, noting the requirements of Section 102.20 (d). It is not acceptable to mark the products “Made in Canada by BBC, product of Nigeria,” or “Made in Canada by BBC product of Nigeria, Africa, etc.”

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at telephone number (301) 575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

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 646-733-3031.

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, Bureau of Customs and Border Protection, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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