HQ 0731925 - Notice to subsequent purchaser or repacker required by 19 CFR 134.25(d) - United States International Trade Commision Rulings

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HQ 731925

September 6, 1989

MAR 2-05 CO:R:C:V 731925 LR

CATEGORY: MARKING

Mr. Richard J. Sullivan
Association of Food
Industries, Inc.
177 Main Street
Matawan, New Jersey 07747

RE: Notice to subsequent purchaser or repacker required by 19 CFR 134.25(d)

Dear Mr. Sullivan:

This is in response to your letter dated August 8, 1988, requesting reconsideration of our position expressed in Headquarters Ruling Letter 729939, dated June 10, 1988, regarding the type of notice to a subsequent purchaser or repacker required under section 134.25(d), Customs Regulations (19 CFR 134.25(d)). We regret the delay in responding.

FACTS:

An importer of bulk food products sells such products to another party for further processing and repacking. The proposed language on the invoice to notify the purchaser of the country of origin marking requirements is as follows:

If a company repacks imported bulk products without processing it further and substantially transforming it, country of origin labeling is required. See 19 CFR Part 134.

ISSUE:

Whether the proposed language satisfies the notice requirements of 19 CFR 134.25(d).

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304) requires, subject to specified exceptions, that every article of foreign origin imported into the U.S. shall be marked to indicate the country of origin to the ultimate purchaser in the U.S. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C 1304. An ultimate purchaser is defined in 19 CFR 134.1 as "the last person in the U.S. who will receive the article in the form in which it was imported."

Articles which are incapable of being marked and articles on the so called- J-list are excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(A) and (J), respectively. However, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents. See 19 U.S.C. 1304(b), 19 CFR 134.33 and 19 CFR 134.22(a).

If an imported J-list article or other article incapable of being marked will be repacked prior to sale to the ultimate purchaser, the importer must certify to Customs that he will properly mark the new package and/or notify the repacker of the obligation to mark the new package. See 19 CFR 134.25(a). When the article is sold or transferred to a subsequent purchaser or repacker, the following notice is required by 19 CFR 134.25(d):

NOTICE TO SUBSEQUENT PURCHASER OR REPACKER

These article are imported. The requirements of 19 U.S.C. 1304 and 19 CFR Part 134 provide that the articles or their containers must 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 an ultimate purchaser in the United States, the English name of the country of origin of the article.

The certification and notice procedures of 19 CFR 134.25 were established to ensure that the ultimate purchaser is advised of the country of origin of imported bulk products, despite an intervening repacking operation. If, however, the repacker substantially transforms the imported article prior to repacking, the manufacturer/repacker is the ultimate purchaser and no further marking is required. See 19 CFR 134.35.

In HQ 729939, June 10, 1988, Customs found that the proposed language was unacceptable because it "introduces concepts beyond the notice to subsequent purchaser or repacker required by the regulations, e.g., substantial transformation, and therefore could be confusing or misleading to such party."

Upon reconsideration of the matter we find that it is not confusing or misleading to refer to the substantial transforma- tion concept in the notice to subsequent purchasers because it is directly relevant to the question of whether the new package must be marked with the country of origin. However, since the repacker may be unfamiliar with the substantial transformation
issue, if the proposed language is included, the notice must also advise the subsequent purchaser or repacker to consult with Customs to ascertain whether or not the processing to be performed will result in a substantial transformation. In addition, since the repacker may also be unfamiliar with the general country of origin marking requirements of 19 U.S.C. 1304, the notice must also include the information in the sample notice set forth in 19 CFR 134.25(d).

HOLDING:

The notice to subsequent purchaser or repacker required by 19 CFR 134.25(d) may include the proposed language so long as it also advises the subsequent purchaser to consult with Customs on the issue of substantial transformation and includes the additional information set forth in the sample notice provided in 19 CFR 134.25(d).

Sincerely,

John Durant, Director

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