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HQ 560498

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December 19, 1997

MAR-05 RR:CR:SM 560498 KKV

CATEGORY: MARKING

Mr. Nick Mesich
Golden West Bakery Ltd.
1111 Derwent Way
Annacis Island
Delta, British Columbia
CANADA
V3M 5R4

SUBJECT: Country of origin marking requirements applicable to English muffins imported in bulk and sold to restaurant operator for use in food products; ultimate purchaser; purchase of a service; food preparation; marking of outermost container; 19 CFR 134.32(d)

Dear Mr. Mesich:

This is in response to your letter dated May 27, 1997, which requests information regarding the country of origin marking requirements applicable to English muffins imported for sale to restaurants for use in food products.

FACTS:

You indicate that your firm, which is located in Canada, supplies English muffins to McDonald's Restaurants, exclusively for commercial/industrial purposes for use in their restaurants in Washington State, Oregon, Montana, Idaho and Alaska. In order to standardize operations, you wish to remove labeling from the product's packaging. You indicate that required information such as "Ingredient Legend, Product Description, Weight, Country of Origin, Manufacturer etc" would be continued to be provided on entry documentation for the examination of the inspecting officers.

ISSUE:

What are the country of origin marking requirements applicable to English muffins imported for commercial use by a restaurant operator?
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 United States 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 United States the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as:

The country of manufacture, production, or growth of any article of foreign origin entering the United States.
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 the meaning of this part; however for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.

Section 134.1(j), Customs Regulations (19 CFR 134.1(j) 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), Customs Regulations (19 CFR 134.1(g)), 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, set forth at 19 CFR 102.

In determining the country of origin marking requirements for the imported muffins, the identity of the "ultimate purchaser" must first be ascertained. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), provides that:

The "ultimate purchaser'' is generally the last person in the United States who will receive the article in the form in which it was imported; however, for a good of a NAFTA country, the "ultimate purchaser'' is the last person in the United States who purchases the good in the form in which it was imported.

However, where an article is sold at retail in its imported firm, the purchaser at retail is the ultimate purchaser (See

In the case before us, a restaurant chain imports bulk quantities of English muffins not for resale in their imported form, i.e., bulk foodstuffs, but for use in making food products. Although the imported articles are eventually purchased in the U.S. by retail consumers after having been incorporated into prepared food items, these purchasers are essentially purchasing a service - food preparation.

Customs has previously discussed the country of origin marking requirements applicable to imported foodstuffs used by a restaurant operator. In Customs Service Decision (C.S.D.) 90-42, dated January 11, 1990, raw shrimp was imported into the United States, where it was cooked, peeled, deveined, frozen and repacked into master cartons and distributed to the food service trade. Customs determined that the imported shrimp had not been substantially transformed by the U.S. processing and held that the imported articles were subject the marking requirements when repackaged, stating, "[w]hen the imported shrimp is sold to a restaurant operator for his own use, the restaurant operator is considered to be the ultimate purchaser of the imported shrimp." Accordingly, it was held that marking the country of origin on the carton in which the restaurant operator receives the shrimp satisfies the requirements of 19 U.S.C. 1304.

You propose to remove all marking, including country of origin marking, from the product's packaging, stating that you would continue to provide required information on the Customs entry documentation. With regard to your request, we note that section 134.32(d) of the Customs Regulations (19 CFR 134.32(d)), exempts from the marking requirements those articles for which the container will reasonably indicate the origin of the articles. Therefore, inasmuch as the restaurant operator is the "ultimate purchaser" of the imported articles, any individual packages will not need to be marked, provided that the outermost container or carton in which the articles are imported and in which they reach the restaurant operator are marked with the country of origin. It is not acceptable to display the country of origin marking solely on Customs entry documents.

It is important to note that this determination applies only to the country of origin marking requirements under 19 U.S.C. 1304. It does not affect the enforcement of other laws and regulations administered by the U.S. Department of Agriculture, Food and Drug Administration or any other agency of the United States Government. Inasmuch as the removal of all labeling may impact regulatory requirements administered by other entities, we suggest that you contact any such agency or agencies to assure compliance with other laws.
HOLDING:

Where English muffins are imported into the U.S. and purchased by a restaurant operator for its own use in making prepared food products, the restaurant operator is the "ultimate purchaser" of the imported articles within the meaning of 19 U.S.C. 1304. Accordingly, pursuant to 19 CFR 134.32(d), the individual packages of muffins will be excepted from marking as to country of origin, provided the outermost container in which the articles are imported and in which they reach the restaurant operator is marked with the country of origin.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant
Director

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