MAR-2-05 CO:R:C:V 733798 NL

Herbert Peter Larsen, Esq.
233 Broadway
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 retail containers?


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 U.S.C. 1304.

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, -3-

such as vegetables, fruits, nuts, 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 marked.

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 -4-

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 thereof.


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 -5-

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 134.25.


John Durant, Director
Commercial Rulings Division

cc: National Import Specialist
Group 1, NY Seaport