CLA-2-20:OT:RR:NC:N2:228
Mr. James Corpstein
J.R. Simplot Company
999 Main Street, Suite 1300
Boise, ID 83702
RE: The tariff classification, country of origin, and marking of “Roasted Mediterranean Vegetables;” Article 509
Dear Mr. Corpsteim:
In your letter dated January 19, 2015, you requested a ruling on classification, country of origin, and marking of “Roasted Mediterranean Vegetables.”
An ingredients breakdown accompanied your inquiry. A marked sample was not provided with your letter for review. The subject product, “Roasted Mediterranean Vegetables,” consists of approximately 19 percent IQF (Individually Quick Frozen) yellow squash, 18 percent IQF green beans, 18 percent IQF sliced carrots, 18 percent IQF sliced zucchini, 9 percent IQF roasted onion strips, 5 percent IQF roasted red bell pepper strips, 5 percent IQF roasted green bell pepper strips, 4 percent IQF roasted yellow bell pepper strips, 2 percent extra virgin olive oil, and one percent seasoning.
The IQF green beans and seasoning are products of the United States. The IQF roasted onion strips, IQF roasted red bell pepper strips, IQF roasted green bell pepper strips, IQF roasted yellow bell pepper strips are grown and processed in the United States. The IQF sliced carrots is a product of Israel. The IQF sliced zucchini is a product of Guatemala or Mexico. The olive oil is a product of Spain, Tunisia, Italy, Turkey or Morocco. The IQF yellow squash is a product of Guatemala, Mexico or Spain. In a telephone conversation with a member of my staff, on February 9, 2015, you confirmed that each ingredient was prepared separately in their specified state in their respective countries, then mixed together at your company’s United States (U.S.) based facility to become the final product, “Roasted Mediterranean Vegetables.” The finished product will be ready for retail sale in frozen condition.
The applicable tariff provision for the “Roasted Mediterranean Vegetables” will be 2004.90.8580, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006 ... other vegetables and mixtures of vegetables ... other ... other, including mixtures.
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, CBP Regulations (19 C.F.R. 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 North American Free Trade Agreement (NAFTA) country" are also determined in accordance with Annex 311 of the NAFTA, as implemented by section 207 of the NAFTA Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate CBP Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, CBP Regulations. The marking requirements of these goods are set forth in Part 134, CBP 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.
I. Non-NAFTA Origin Determination
The issue to be considered here is whether the imported ingredients, when all are sourced from non-NAFTA countries, and are mixed with U.S.-origin ingredients in the U.S., become a good of the U.S. as a result of the mixing operation. This issue would turn on whether the imported ingredients are substantially transformed by being mixed.
A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to 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 this instance, we finds that the sliced carrots, sliced zucchini, yellow squash, and olive oil have not undergone a substantial transformation. The operations performed in the U.S. do not result in notable changes in the name, character, or use of the imported products. The vegetables and olive oil are still readily discernable in the mixture.
Applying the Marking Rules set forth in section 304 of the Tariff Act of 1930, as amended and Part 134 of the CBP Regulations, we find that the country of origin of the “Roasted Mediterranean Vegetables” is the country of origin of each ingredient, for example, the United States, Israel, Guatemala and Spain. Depending on the actual countries of origin of the olive oil and yellow squash, the listed countries of origin may change.
Goods of U.S. origin are excepted from the country of origin marking requirements of 19 U.S.C. 1304. Thus, it would be acceptable for the packaging to be marked to indicate only that the mix is a product of Israel, Guatemala, and Spain as an example. However, if you also wish to identify the U.S. origin ingredients, CBP would have no objection to a marking such as “Product of U.S.A., Israel, Guatemala, and Spain.” In this regard, it should be noted that the marking of articles in whole or in part as “Product of U.S.A.” is a matter within the jurisdiction of the Federal Trade Commission (FTC) and we suggest that you contact that agency for a determination.
II. NAFTA Country of Origin Determination
When the sliced zucchini and/or the yellow squash are sourced from Mexico, and the sliced carrots and olive oil are products of non-NAFTA countries, and the final preparation has been produced in the U.S., the NAFTA Marking Rules apply.
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.
Section 134.35(b) states that a good of a NAFTA country which is to be processed in the United States in a manner that would result in the good becoming a good of the U.S. under the NAFTA Marking Rules is excepted from marking. Unless the good is processed by the importer or on its behalf, the outermost container of the good shall be marked in accord with this part.
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 “Roasted Mediterranean Vegetables” is a product of the United States because each foreign ingredient undergoes an applicable tariff shift pursuant to 19 C.F.R. §102.11(a)(3) and 19 C.F.R. §102.20(d).
Chapter 20 Note under 19 C.F.R. §102.20(d) states:
Notwithstanding the specific rules of this chapter, fruit, nut and vegetable preparations of Chapter 20 that have been prepared or preserved merely by freezing, by packing (including canning) in water, brine or natural juices, or by roasting, either dry or in oil (including processing incidental to freezing, packing, or roasting), shall be treated as a good of the country in which the fresh good was produced.
However, this note does not apply to the subject product. Mixing the vegetables with olive oil and a seasoning according to the pre-determined formulation exceeds the operations described in the Chapter 20 Note.
Accordingly, since the “Roasted Mediterranean Vegetables” is a product of the U.S., it is excepted from country of origin marking. However, use of the phrase "Made in U.S.A." is within the jurisdiction of the FTC and we suggest that you contact that agency for a determination.
III. Marking
As provided in section 134.41(b), CBP Regulations (19 C.F.R. 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.
In section 134.1(k), CBP Regulations (19 C.F.R. 134.1(k)), “Conspicuous” means capable of being easily seen with normal handling of the article or container.
With regard to the permanency of marking, section 134.41(a), CBP Regulations (19 C.F.R. 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, CBP Regulations (19 C.F.R. 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
In this case, in the non-NAFTA origin determination scenario, the product may be marked such as “Product of Israel, Guatemala and Spain” depending on the actual countries of origin of foreign ingredients, or similar language in a conspicuous place as legibly, indelibly and permanently as the nature of its container will permit. In the NAFTA origin determination scenario, the product is determined to be a product of the U.S. and exempted from marking. As stated before, products of the U.S. are not subject to the country of origin marking requirements of 19 U.S.C. 1304. Whether an article may be marked with the phrase "Made in the U.S.A." or similar words denoting U.S. origin, is an issue under the authority of the FTC. We suggest that you direct any questions on this issue to the FTC.
In your letter, you also request the eligibility of any trade agreements on the “Roasted Mediterranean Vegetables.” This office will not issue a ruling on the free trade agreement eligibility or marking requirements of the “Roasted Mediterranean Vegetables” upon exportation to other countries as this would be under the jurisdiction of those countries.
This ruling is being issued under the provisions of Part 181 of the CBP Regulations (19 C.F.R. 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 Bruce N. Hadley, Jr. at [email protected].
Sincerely,
Gwenn Klein Kirschner
Director
National Commodity Specialist Division