The country of origin and marking of chilled peeled garlic cloves from Vietnam

N269546 October 23, 2015 MAR-2-07:OT:RR:NC:N2:228 CATEGORY: MARKING Mr. Paul Rath Brighton International Products Corp. 36 Tanglewood Drive West Orchard Park, NY 14127 RE: The country of origin and marking of chilled peeled garlic cloves from Vietnam Dear Mr. Rath: In your letter dated October 9, 2015, you requested a ruling on the tariff classification, country of origin, marking, and application of a trade program or agreement for chilled peeled garlic cloves. A marked sample was not submitted with your letter for review. You state that the product has been grown and processed in Vietnam, and is stored and shipped chilled at 32 degrees Fahrenheit. The product will be packed in either 30 lb. boxes, or in 5 lb. plastic jars, 4 jars per case. The applicable subheading for chilled peeled garlic cloves was addressed in tariff classification ruling letter N263590 sent to you on April 24, 2015, therefore, it will not be addressed in this letter. 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 and Border Protection (CBP) Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. 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 . . . . In this instance, the imported product has been grown and processed in Vietnam and, therefore, we find that the country of origin of the chilled peeled garlic cloves is Vietnam. Section 134.1(d), CBP Regulations (19 CFR 134.1(d)), defines the ultimate purchaser as “generally the last person in the U.S. who will receive the article in the form in which it was imported.” 19 CFR 134.1(d) (1) states “If an imported article will be used in manufacture, the manufacturer may be the ‘ultimate purchaser’ if he subjects the imported article to a process which results in a substantial transformation of the article, even though the process may not result in a new or different article . . . .” (2) states “If the manufacturing process is merely a minor one which leaves the identity of the imported article intact, the consumer or user or the article, who obtains the article after the process, will be regarded as the ‘ultimate purchaser’.” (3) states “if an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.” Section 134.32, CBP Regulations (19 CFR 134.32), provides general exception to marking requirements. Articles for which the marking of the containers will reasonably indicated the origin of the articles are excepted from marking requirements. See19 CFR 134.32 (d). Section 134.22, CBP Regulations (19 CFR 134.22), provides general rules for marking of containers or holders. 19 CFR 134.22 (a) states “When an article is excepted from the marking requirements by subpart D of this part, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of origin of the article whether or not the article is marked to indicate its country of origin.” As provided in section 134.41(b), CBP Regulations (19 CFR 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 a marking, section 134.41(a), CBP Regulations (19 CFR 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 CFR 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. Your inquiry does not provide enough information for us to rule on the country of origin marking on the chilled peeled garlic cloves. Your request for a marking ruling should include: (a) a sample of the product label, (2) details about how you plan to mark your product on each type of packaging (for example, are inner containers to be marked, or are outer containers to be marked, or no marking on either containers), and (3) details on how the product will be sold, either commercially through wholesalers, repackers, or retail channels. When this information is available, you may wish to resubmit your request for a ruling. In your letter, you also requested the eligibility of any trade programs or agreements. At this time, the U.S. does not have any free trade agreements or special trade programs in force with Vietnam. The products will not be eligible for preferential duty treatment. Importations of chilled peeled garlic cloves may be subject to regulations or restrictions administered by the U.S. Department of Agriculture, Animal and Plant Health Division (APHIS) and/or the U.S. Food and Drug Administration. It is suggested you contact these agencies directly for further information. 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 ww.fda.gov/oc/bioterrorism/bioact.html. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Bruce N. Hadley, Jr. at bruce.hadleyjr@cbp.dhs.gov. Sincerely, Gwenn Klein Kirschner Director National Commodity Specialist Division