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NY A81143

March 19, 1996

MAR-2 RR:NC:FC:228 A81143


Mr. Guillermo Valencia
Valencia International, Inc.
P.O. Box 2807
Nogalez, AZ 85628


Dear Mr. Valencia:

This is in response to a letter dated February 20, 1996 from your client, Sea of Cortez Distributors, Inc., Rio Rico, AZ, requesting a ruling on the country of origin marking requirements for imported grapes, products of Mexico.

The grapes will be imported in cartons weighing 18 to 20 pounds, each carton containing several bunches of grapes individually packed in clear, unmarked plastic bags. The carton itself will be marked "Produce of Mexico." Three sample bags were submitted with your letter. The bags are in the shape of an inverted triangle, open at the top, perforated along the vertical axis, and said to be made of clear, polyethylene film. Each bag is imprinted with the fruit's PLU (i.e., "price look-up") code number in red or green ink, on a white background. One sample bag also bears the logo for the "5 a Day - for Better Health!" promotional program.

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 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 interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994 to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements of these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).

Section 134.45(a)(2) of the interim 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 134.1(g) of the interim 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.

As provided in section 134.41(b), Customs 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. With regard to the permanency of a marking, section 134.44, Customs 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. Section 134.1(d) of the interim regulations, provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.

Certain articles, such as grapes, are excepted from marking under 19 U.S.C. 1304(a)(3)(J) and section 134.33, Customs Regulations (19 CFR 134.33). However, if such articles are imported in a container, the outermost container in which the article reaches the ultimate purchaser must be marked to indicate the origin of its contents.

Applying the NAFTA Marking Rules to the specific situation you have presented, we find that the purchaser at retail is the ultimate purchaser of the grapes, and the outermost container in which the grapes reach the ultimate purchaser is the clear plastic bag. Therefore, the plastic bags must be marked to indicate Mexico as the country of origin.

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 Stanley Hopard at 212-466-5760.

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, U.S. Customs Service, 1301 Constitution Ave., NW, Franklin Court, Washington, DC 20229.


Roger J. Silvestri

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