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NY 896360

April 6, 1994

MAR-2-30:S:N:N7:238 896360


Mr. Lionel Borkan
Vernon Waldon Inc.
268 Green Village Rd.
Green Village, NJ 07935


Dear Mr. Borkan:

This is in response to your letter dated March 17, 1994, requesting a ruling on whether the container in which Vitamin E capsules are repackaged in the U.S., subsequent to importation from Mexico, can be marked with the country of origin, in lieu of marking the capsules themselves, when no other markings appear on the capsules themselves. A marked sample container was not submitted with your letter for review. Please be advised that this ruling addresses your inquiry only with respect to whether or not the retail containers can be marked with the country of origin of the goods; it does not constitute a ruling on the determination of the actual country of origin of the goods.

According to your letter, liquid Vitamin E, which has been manufactured in the United States, will be shipped, in bulk form, to Mexico for encapsulation into soft-gelatin capsules. The Mexican manufacturer fills this bulk, liquid Vitamin E into soft- gelatin capsules, processes them, packs them, in bulk, in plastic bags, and then into cartons for export to the United States. You state that the Vitamin E shipped to Mexico only undergoes encapsulation, and is not altered in any manner in Mexico. Upon importation into the United States, the capsules are then repackaged into bottles, labelled and distributed to various distributors throughout the country.
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 [("C.R."), (19 CFR Part 134)], implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), C.R. [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), C.R., 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. In this case, the ultimate purchaser of the Vitamin E capsules is the consumer who purchases the product at retail.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), C.R. [19 CFR 134.32(d)], if the marking of a container of such article will reasonably indicate the origin of such article. However, since the Vitamin E capsules are not imported in their marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the district director to decide. In this regard section 134.34, C.R. (19 CFR 134.34), provides that an exception may be authorized in the discretion of the district director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S., and (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, assuming that the district director is satisfied that the imported Vitamin E capsules will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the district director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported Vitamin E capsules will not be required.

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

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is 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.


Jean F.Maguire

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