HQ 0732167 - Country of Origin Marking of Small Automotive Parts - United States International Trade Commision Rulings

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HQ 732167

November 20, 1989

MAR 2-05 CO:R:C:V 732167 NL

CATEGORY: MARKING

William J. LeClair
Administrative & Regulatory Officer
Trans-Border Customs Services
Post Office Box 800
Champlain, New York 12919

RE: Country of Origin Marking of Small Automotive Parts

Dear Mr. LeClair:

This is in response to your letter of February 16, 1989, which sought clarification of our previous letter to you of January 10, 1989 (our reference HQ 731347). In that previous letter we advised you that we were unable to provide a binding ruling because you had provided no information concerning how the articles were to be packaged when they entered the U.S., or whether the imported articles were to be repacked in the U.S. We did advise you generally that exemptions from the country of origin marking requirements were possible pursuant to: (1) 19 CFR 134.32(a) for articles that are incapable of being marked without injury; and (2) 19 CFR 134.32(d) for articles for which the marking of their containers will reasonably indicate the country of origin of the articles.

FACTS:

With your more recent letter you have submitted a large number of sample parts imported by your client, Kimpex (USA), including gaskets, springs, electrical connectors, carburator parts and other items, all of small dimension. Some of the parts are not marked with their country of origin, some are marked with stickers affixed, and others are enclosed in clear plastic bags to which marking stickers are affixed.

Your client imports the unmarked parts in bulk in containers which bear the respective countries of origin of the parts. Then, at its Champlain, N.Y. distribution facility, Kimpex removes the parts from those containers and places them in bins sorted according to part number. When it receives an order from a parts dealer, a new container is prepared containing parts which have been individually marked either by affixing a sticker or by by placing the part in a plastic bag with a sticker bearing the name of the country of origin, as shown in the submitted samples. You state that Kimpex undertakes this marking of individual parts because the ultimate purchaser of a part is often a vehicle owner who buys single parts from the dealer.

You further state that packaging the articles in this manner is labor intensive and greatly advances the cost of each part. Kimpex itself makes no sales in the retail consumer market.

ISSUES:

Are the articles either too small to be marked (19 CFR 134.32(a)) or incapable of being marked without injury (19 CFR 134.32(b))? Can both the articles and their containers, if any, be excepted from the country of origin marking requirements if the alternate method of marking them, i.e., placing them individually in marked plastic bags, is prohibitively costly?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires, subject to certain specified exceptions, that every article of foreign origin imported into the U.S. be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article 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. Pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), an exception from individual marking is applicable where the marking of a container of such article will reasonably indicate the origin of such article.

This exception is normally applied in cases where the imported article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser, i.e., the last person in the U.S. to receive the article in the form in which it was imported, will receive it in its original unopened marked container. In HQ 729075 (January 13, 1986), we explained that the exception would apply "...where the ultimate purchaser (other than the importer) will in all foreseeable circumstances receive the imported article in its original marked container..." This policy and practice is based squarely upon 19 U.S.C. 1304(b), which by its terms generally requires that the immediate container of an imported article reaching the ultimate purchaser be marked whenever the article itself is excepted from marking.

Under the circumstances you have described it is evident that the articles are not reasonably likely to reach at least some of the ultimate purchasers in their original properly marked containers. We are thus unable to except the imported articles from country of origin marking on the basis of 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). Our letter of January 10, 1989, had suggested this as a possible exception. However, assuming that the imported articles are to be repacked after release from Customs custody in containers which indicate the country of origin to the ultimate purchaser, an exception under 19 CFR 134.32(d) may be authorized in the discretion of the district director if certain conditions are satisfied. See 19 CFR 134.34. If this exception is authorized by the district director, you would be able to continue your present practice of marking the bulk containers in which the parts are imported and then marking the package in which each part is packed after importation.

At this time we cannot consider your request to except the sample parts from the country of origin marking requirements on the basis that they are incapable of being marked or cannot be marked without injury, since you have submitted no information as to cost or as to the kind of injury the articles would sustain as a result of marking. In addition, although you allege generally that repackaging the parts after importation is costly, we as yet have no data upon which to grant an exception pursuant to 19

Moreover, even if an exception from marking the parts individually were to be found, 19 U.S.C. 1304(b) requires that the immediate container of an excepted article be marked with the country of origin of the article. If the excepted articles are to be repacked after importation, section 134.25, Customs Regulations (19 CFR 134.25), requires that importers engaged in repacking after importation, or whose customers engage in repacking, satisfy Customs that the new containers comply with the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

HOLDING:

Insufficient information was submitted upon which to determine whether the parts could be excepted from the country of origin marking requirements as too small to mark, incapable of being marked without injury, or prohibitively costly to mark after importation by alternative methods. In addition, since the marked bulk containers in which the articles are imported will not reach the ultimate purchasers, we cannot authorize an exception from individual marking under 19 CFR 134.32(d). Therefore, the parts themselves must be individually marked with their country of origin at the time of importation unless the district director authorizes an exception from individual marking pursuant to 19 CFR 134.34. Under no circumstances applicable here would Customs approve an exception from the country of origin marking requirements for both the articles and their containers.

Sincerely,

John Durant
Chief, Commercial Rulings

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