MAR-2-05 CO:R:C:V 733798 NL
Herbert Peter Larsen, Esq.
New York, NY 10279
RE: Country of Origin Marking - Fresh Tomatoes;
Repackaging; J-List; 19 CFR 134.33; 19 CFR 134.25.
Dear Mr. Larsen:
This is in response to your letter dated August 20, 1990,
and your supplemental memorandum dated November 15, 1990, in
which you request a ruling on the country of origin marking
requirements affecting imported fresh tomatoes and their U.S.-
origin packaging. The request has been forwarded to this office
from the Chief, National Import Specialist Branch 1, New York
Seaport, together with his comments on the merits of the request.
Your client manufactures in the U.S. proprietary "controlled
atmosphere" packaging for fresh tomatoes. Each package holds two
tomatoes and is intended as the retail container in which your
client will market select tomatoes.
In the proposed transaction(s) tomatoes would be imported
from Mexico in master containers marked with their country of
origin. Your client would select tomatoes meeting his
specifications, package them in the controlled atmosphere trays,
and pack the trays in master cartons each containing 24 trays (2
tomatoes per tray). These master cartons, marked with Mexico as
the country of origin of the contents, would be distributed to
retail grocery and produce outlets. Neither the tomatoes nor the
controlled atmosphere trays would be marked with the Mexican
country of origin of the tomatoes.
A ruling is requested to the effect that neither the
tomatoes nor the controlled atmosphere containers are required to
be marked with the country of origin of the tomatoes. (The
request is phrased as one seeking an exception from marking for
the packaging, but clearly, the reference is to the tomato
contents. As an article of U.S. origin the packaging is not
subject to the country of origin marking requirements.) You
contend that the ultimate purchaser of the tomatoes is the retail
seller who unpacks the marked master cartons in which the 24
trays are shipped to retail sellers. As to him, you believe that
adequate indications of country of origin are given, and that
this is all that is required by law.
Customs (New York Seaport) has advised this office that it
disagrees with your interpretation. In its opinion the ultimate
purchaser of the tomatoes is the purchaser at retail, not the
recipient of the master carton. It believes that repackaging
the tomatoes into the controlled atmosphere containers after
importation is governed by the requirements of 19 CFR 134.25,
which requires that such repackaging materials be marked so as to
indicate the country of origin of their contents to the ultimate
purchaser. This office agrees entirely.
What are the country of origin marking requirements
applicable to fresh tomatoes repackaged after importation in
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), provides that, unless excepted, every article of foreign
origin imported into the U.S. shall be marked in a conspicuous
place as legibly, indelibly, and permanently as the nature of the
article (or 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
Fresh tomatoes are among the articles listed by the
Secretary of the Treasury under the authority provided in 19
U.S.C. 1304(a)(3)(J) and 19 CFR 134.33. This list, known as the
"J-List", excepts from country of origin marking articles which
were not required to be marked during the five year period prior
to 1937. Specifically, the J-List includes "natural products,
such as vegetables, fruits, nuts, berries...in their natural
state or not advanced in any manner further than is necessary for
their safe transportation".
However, under the statutory scheme such articles are not
entirely excepted from marking; in almost all cases the country
of origin of the imported article is required to be indicated to
the ultimate purchaser on the container of the article. 19
U.S.C. 1304(b) provides that whenever an article is excepted
[pursuant to the J-List], "the immediate container if any, of
such article, or such other container or containers of such
article as may be prescribed by the Secretary of the Treasury,
shall be marked..." The marking regulations at 19 CFR 134.33
track this requirement by providing that if a J-Listed article is
imported in a container, "the outermost container in which the
article ordinarily reaches the ultimate purchaser is required to
be marked in accordance with the requirements of Subpart C of
this part." Subpart C sets forth the requirements for the
marking of containers and articles repackaged after importation.
Thus, the J-List reflects a recognition that some articles are
themselves not susceptible of marking, but in no way diminishes
the requirement of section 304 that the ultimate purchaser of an
imported article be given an indication of its country of origin.
The requirement is satisfied by marking the "immediate container"
(in the words of the statute) in which the imported article
reaches the ultimate purchaser, or (in the words of the
regulation) "the outermost container" in which the article
ordinarily reaches the ultimate purchaser.
Section 134.1(d), Customs Regulations (19 CFR 134.1(d),
provides that generally, the ultimate purchaser is the last
person in the U.S. to receive the article in the form in which it
was imported. It is not alleged here that the imported fresh
tomatoes are changed by packaging in controlled atmosphere
containers, nor is anything else done to change them prior to
retail sale. They are the same articles at retail sale as those
which were bulk packaged at importation. Thus, we have no doubt
that the ultimate purchaser of these tomatoes is the person who
buys them to eat.
From this finding it follows, pursuant to section 304(b) and
19 CFR 134.33, that the containers in which the tomatoes are sold
- the controlled atmosphere packaging - are required to be
marked with the country of origin of their contents. The
controlled atmosphere packaging is either the "outermost" or
"immediate" container, but in either event is required to be
This has been the position of Customs with respect to
imported tomatoes and other fresh produce for some time. In 1983
Customs implemented amendments to 19 CFR Part 134 which
established the responsibility of importers to mark the
containers of J-listed articles repackaged after importation, or
in the alternative, to give notice to a subsequent purchaser or
repacker of his obligation to properly mark imported articles
which are repackaged. See, 19 CFR 134.25; T.D. 83-155 October
24, 1983). Specifically, 19 CFR 134.25 states that if a J-List
article is intended to be repacked in new containers for sale to
an ultimate purchaser after release from Customs custody, or if
the district director, having custody of the article, has reason
to believe such article will be repacked after its release, the
importer shall certify to the district director that: (1) if the
importer does the repacking, the new container shall be marked to
indicate the origin of its contents; or (2) if the article is
intended to be sold or transferred to to a subsequent purchaser
or repacker the importer shall notify the purchaser or
transferee, in writing, at the time of sale or transfer, that any
repacking of the article must conform to these requirements.
Customs has ruled that the certification requirements apply
unless the imported articles are substantially transformed prior
to repacking. See, HQ 732337 (August 16, 1989)(crab meat
processed in the U.S. is not substantially transformed, and upon
repacking is subject to the requirements of 19 CFR 134.25). In
this case the additional ripening of the tomatoes does not
constitute a substantial transformation, and the requirements of
19 CFR 134.25 are applicable.
This is consistent with a previous ruling on fresh tomatoes.
In Headquarters Ruling Letter 722992 (November 8, 1983),
applying 19 CFR 134.25, Customs ruled that tomatoes repackaged
after importation are required to be marked, either by the
importer if he does the repackaging or by the subsequent
purchaser/repacker if he does so. The rulings you cite,
Headquarters Ruling 709922 (C.S.D. 79-404)(May 2, 1979) and
717895 (1981), predate the implementation of 19 CFR 134.25, and
do not represent the current Customs position.
Your request correctly points out that Customs has not
required the marking of imported tomatoes which are sold in open
grocery bins or display racks. See, HRL 722992, supra. The
reason for the apparent inconsistency is that Customs has not
determined that such open displays constitute "containers"
within the meaning of Part 134. By contrast, the controlled
atmosphere retail packaging at issue here is plainly container
material within the meaning of 19 U.S.C. 1304 and Part 134,
Customs Regulations. As such, it is subject to the requirements
Fresh tomatoes repacked in controlled atmosphere containers
after importation are subject to the country of origin marking
requirements in accordance with 19 U.S.C. 1304(b) and 19 CFR
134.33. Such marking is to be done by the importer or the
subsequent purchaser/repacker as the circumstances require in
accordance with 19 CFR 134.25, and the importer of the tomatoes
must follow the certifications requirements set forth in 19 CFR
John Durant, Director
Commercial Rulings Division
cc: National Import Specialist
Group 1, NY Seaport