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NY I89834

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January 30, 2003

MAR-2 RR:NC:2:228 I89834

CATEGORY: MARKING

Mr. Michael Monroe
Ms. Lynn Monroe
Fungus Among Us
P.O. Box 352
Snohomish, WA 98291

RE: THE COUNTRY OF ORIGIN MARKING OF MUSHROOMS

Dear Mr. and Ms. Monroe:

This is in response to your letter dated December 17, 2002 requesting a ruling on the country of origin marking for imported mushrooms repackaged in the United States.

Four unmarked samples and an “ingredient list” for 23 products were submitted with your letter for review. Ruling requests are limited to a maximum of 5 items of the same class or kind. This ruling will be limited to the four samples you submitted.

The products consist of dried mushrooms or dried mushrooms mixed with dried vegetables or herbs, packed for retail sale in clear plastic film packages with a cardboard header. Product no. 600134, Porcini, is a package of dried sliced porcini mushrooms (Boletus edulis). Product no. 600141, Wood Ear, consists of thin, dry shavings from the wood ear fungus. Product no. 600257, Shiitake & Italian Herb Blend is a mixture of sliced, dried, sliced shiitake mushrooms, and dried oregano, marjoram, thyme, rosemary, basil, and sage. Product no. 600271, Medley & Garlic Herb Blend is a mixture of several different, unidentified dried mushrooms, sesame seeds, black pepper, dried garlic, dried green onion, and lemon peel. Depending on the product, the mushrooms may be products of China, Georgia Republic, Canada, or the United States. The herbs and dried vegetables may originate in Turkey, Morocco, Israel, Croatia, Egypt, Spain, or the United States. Your letter does not identify which herbs and dried vegetables may come from these countries, nor does it provide an ingredients breakdown, by weight, for any of the finished blends. The ingredients will be imported or purchased from domestic sources in bulk containers and subsequently repackaged into the retail units described above. Other than blending and packaging, no other operations are performed on the ingredients.

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. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported mushrooms are not substantially transformed as a result of the blending with other ingredients and/or packing into retail containers. The ultimate purchaser of the imported mushrooms is the consumer who purchases the product at retail. The retail packages into which the imported mushrooms are placed must be marked to show their country or countries of origin.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

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.

Sincerely,

Robert B. Swierupski
Director,

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