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NY K82809




February 17, 2004

CLA-2-20:RR:NC:2:228 K82809

CATEGORY: CLASSIFICATION

TARIFF NO.: 2001.90.3800

Ms. Pascale Snyder
Whyte’s Food Corporation, Inc.
1540 Ave. Des Patriotes
Ste-Rose, Laval Quebec H7L 2N6 Canada

RE: The tariff classification, status under the North American Free Trade Agreement (NAFTA), and country of origin marking of pepperoncini from Canada; Article 509

Dear Ms. Snyder:

In letters dated August 12, 2003, September 15, 2003, November 25, 2003, and a facsimile transmission received on January 7, 2004, you requested a ruling on the status of pepperoncini from Canada under the NAFTA.

The merchandise is described as Baby Golden Peppers (pepperoncini), packed in brine in one-gallon plastic pouches. The peppers are imported into Canada from Greece. In Greece, the peppers, green in color when harvested, are cleaned, punctured, and “pickled.” The pickling process in Greece involves immersing the peppers in a brine composed of salt, acetic acid, citric acid, sodium metabisulfite and sodium benzoate for a minimum of 25 days, with the temperature kept between 30 and 35 degrees Celsius. During this time, the peppers turn golden yellow in color and gain a “smoother” texture. The “pickled” peppers are packed in barrels and shipped to Canada. In Canada, the peppers are removed from the brine, washed, and packed in one-gallon pouches with a hot (145 degrees Fahrenheit) brine consisting of water, salt, vinegar, and sodium benzoate. A sample, submitted with earlier correspondence, was analyzed by the Customs laboratory and found to contain 2.21 percent acetic acid.

The applicable tariff provision for the pepperoncini will be 2001.90.3800, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for vegetablesprepared or preserved by vinegar or acetic acidotherothervegetablesother. The general rate of duty will be 9.6 percent ad valorem.

The merchandise does not qualify for preferential treatment under the NAFTA because the non-originating material (the peppers) used in the production of the goods will not undergo the change in tariff classification required by General Note 12(t)/20.1, HTSUSA.

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. (Emphasis added).

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 imported pepperoncini is a good of a Greece for marking purposes.

This ruling is being issued under the provisions of Part 181 of the Customs 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 Stanley Hopard at 646-733-3029.

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

Sincerely,

Robert B. Swierupski
Director,

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