COUNTRY OF ORIGIN MARKING OF IMPORTED ORGANIC COCONUT MILK FROM THAILAND

N248847 January 15, 2014 MAR-2 OT:RR:NC:N2:228 CATEGORY: MARKING Ms. Shelly Hess IJS Global 12407 NE Marx Street Portland, OR 97230 RE: COUNTRY OF ORIGIN MARKING OF IMPORTED ORGANIC COCONUT MILK FROM THAILAND Dear Ms. Hess: This is in response to your letter dated December 19, 2013, on behalf of Edward & Sons Trading Company (“Edward & Sons”), requesting a ruling on whether imported organic coconut milk in A10 cans are required to be individually marked with the country of origin if the organic coconut milk is later to be processed in the U.S. by a U.S. manufacturer. A marked sample was not submitted with your letter for review. Descriptive literature, an image of a label for A10 metal cans, images of an A10 mental can itself, and a photo showing four sides of a rectangular carton box with their printout information were submitted with your letter. You state Edward & Sons imports organic coconut milk from Thailand in A10 metal cans with product labels marked with the country of origin that is sold to various USA customers. Some of the imported products are sold to a specific USA customer, “Customer A”, who only uses the coconut milk as an ingredient to make frozen entrees and canned soups. Customer A has requested Edward & Sons to supply the A10 cans without labels to reduce any possible source of contamination in the production. In this instance, Edward & Sons will segregate the imported product by a specific unique purchase order clearly designating the product destined for Customer A. You propose that the A10 metal cans destined for Customer A can be imported “bright” with no individual labels on the cans when packed in an outer carton box, six cans per box, with the country of origin printed on it. Regarding the marked rectangular carton box, one long side panel of the box displays the brand name, best use date, the product name, and net weight. The other long side panel shows a UPC bar code. The two short side panels contain the same information printed with the Edward & Sons Trading Co., Inc. name, address, website, legend “Certified organic by QAI”, and the words in comparable size “PRODUCT OF THAILAND.” 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. 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. With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. In this case, the imported organic coconut milk is substantially transformed as a result of the U.S. processing, and therefore the U.S. manufacturer is the ultimate purchaser of the imported organic coconut milk and under 19 CFR 134.35 only the containers which reach the ultimate purchaser are required to be marked with the country of origin “Thailand”. The proposed outer packaging box of the six A10 cans, as described above, is conspicuously, legibly, indelibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, and is an acceptable country of origin marking for the imported organic coconut milk. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site ww.fda.gov/oc/bioterrorism/bioact.html. 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 Bruce N. Hadley, Jr. at (646) 733-3029. Sincerely, Gwenn Klein Kirschner Acting Director National Commodity Specialist Division