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NY N010111

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May 8, 2007

MAR-2 RR:E:NC:N2:228

CATEGORY: MARKING

Ms. Lizbeth Levinson
Garvey Schubert Barer
1000 Potomac Street NW
Washington, DC 20005

RE: THE COUNTRY OF ORIGIN MARKING OF PREPARED FRUITS

Dear Ms. Levinson:

This is in response to your letter dated April 20, 2007, on behalf of Liberty Gold Fruit Co., Ltd., South San Francisco, CA, requesting a ruling on the country of origin marking for fruit products imported from Thailand.

Two scenarios are described in your letter. In the first, frozen, diced peaches, products of China, are exported to Thailand. The processor in Thailand places the peaches in tubs of running water for 6 to 7 hours, sorts the peaches to remove dices that are too large or small, and places the sorted peaches into 4-ounce cups. The cups are moved to a steamer device to remove oxygen from the fruit, filled with a liquid mixture of water, sugar, flavors, citric and ascorbic acid, sealed, sent to a pasteurizer and cooker, and packaged for export to the United States. In the second scenario, a fruit mixture is prepared using the peaches described in scenario one, diced pears, products of China, and pineapple tidbits, products of Thailand. The diced pears are shipped from China to Thailand in 106-ounce cans. The processor in Thailand will fill 4-ounce cups with 23 grams of peaches, 23 grams of pears, and 24 grams of pineapple tidbits, send the cups to a steamer, fill the cups with a liquid mixture of water, sugar, flavors, citric and ascorbic acid, seal the cups, send them to a pasteurizer and cooker, and package the mixed fruit product for export to the United States.

The marking statute, section 304 of the 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 United States 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 United States the English name of the country of origin of the article. Part 134, U.S. Customs and Border Protection Regulations (19 C.F.R. §134) implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304.

Section 134.1(b), U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 134.1(b)), defines "country of origin" as:

[T]he 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

For country of origin marking purposes, a substantial transformation of an article occurs when it is used in manufacture, which results in an article having a name, character, or use differing from that of the article before the processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993). However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983).

In your letter, you suggest both products, the peaches and the fruit mixture, may be marked as products of Thailand. We do not agree. The operations performed in Thailand – sorting, filling, blending, thermal processing – do not effect a substantial transformation to the fruit ingredients of Chinese origin.

Applying the Marking Rules set forth in section 304 of the regulations we find that the prepared peaches are goods of China, and the fruit mixture is a good China and Thailand for marking purposes.

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 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 177 of the Customs Regulations (19 CFR Part 177).

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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