NY B89847 - Country of origin marking of imported motors - United States International Trade Commision Rulings

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NY B89847

September 22, 1997

MAR-2 RR:NC:MM:113 B89847

CATEGORY: MARKING

Mr. Marc D. Torrence
V. Alexander & Co., Inc.
P.O. Box 291929
Nashville, TN 37229-1929

RE: Country of origin marking of imported motors

Dear Mr. Torrence:

This is in response to your letter dated September 12, 1997, on behalf of Magnetek, Inc., requesting a ruling on whether motors made in Hungary may be imported with no country of origin marking if the marking "Magnetek, St. Louis, MO" appears on the article. A marked sample was not submitted with your letter for review.

The importer proposes to import motors from Magnetek Hungaria.The motors are three-phase asynchronous electric motors with squirrel-cage rotors designed to be used in industrial machinery. They will be entered for consumption at Miami, and stored in a commercial warehouse to await sale and shipment to Magnetek's customers in Central and South America. Nothing will be done to the motors. You further state that "under no circumstances will they be sold in the domestic U.S. market." Each motor will be labeled "Magnetek, St. Louis, MO."

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.

19 CFR ?134.32 lists the general exceptions to the marking requirements, only two of which are relevant to this issue..

The articles described or meeting the specified conditions set forth below are excepted from marking requirements (see subpart C of this part for marking of the containers):

(f) Articles imported for use by the importer and not intended for sale in their imported or any other form; (j) Articles entered or withdrawn from warehouse for immediate exportation or for transportation and exportation.

The circumstances of your importation admit of no exception to the marking. 19 CFR 134.32(f) excepts those items imported for the use of the importer, but these motors are imported for sale, not for the importer's own use. Such uses, under Customs' rulings, have included samples for sales presentations, articles imported for testing, articles for showroom display, and machines, equipment, and supplies used in carrying on a business. In general, this exception applies only to articles imported for the importer's personal use.

19 CFR 134.32(j) excepts articles withdrawn from warehouse for immediate exportation or transport and exportation. However, it is clear from your letter that the merchandise is entered for consumption. HQ 734475 ER of March 18, 1992, regarding audio tapes, made this distinction clear.

With respect to marking the court stated that:
when Congress enacted section 304(b), supra, relating to the marking of any imported goods, it had in mind merchandise which was to enter into our commerce. Unless the goods entered into our commerce, a failure to mark them would be of no concern ...

Based on the East Asiatic Co. decision, it follows that imported articles and their containers entered under a transportation and exportation bond and not destined for consumption or use in the United States should be excepted from the marking requirements of Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304).

As noted in the facts above, Sony enters the merchandise in question under a transportation and exportation bond and has no intention of entering the audio cassette tapes and containers into the commerce of the United States. The sole purpose in entering the goods from Mexico into Laredo is to immediately export or transport and export them to Panama. Thus, in accordance with the exception to marking provided for in part 134.32(j), Customs Regulations (19 CFR 134.32(j)) and the East Asiatic Co. decision, Customs maintains that the goods and their outermost packing containers are not subject to the marking requirements of Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304). This exception is not applicable if the importer enters the goods for consumption and subsequently exports them. [underline added]

In addition, and most importantly, in that previous instance, the merchandise did not bear any U. S. reference, as the motors do in this case. Section 134.36(b), Customs Regulations (19 CFR 134.36(b)), provides that exceptions from marking shall not apply to articles bearing misleading markings, i.e., words, letters, names, or symbols which imply that the articles were made or produced in a country other than the actual country of origin. A U.S. address such as appears on the article is misleading within the meaning of section 134.36, Customs Regulations (19 CFR 134.36) as it implies the possibility that the motor was made in the United States rather than Hungary.

Finally, Section 134.46, Customs Regulations (19 CFR 134.46), requires that in any case in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

The proposed marking of imported motors, as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported motors. Each motor must be marked "Made in Hungary," in the manner required by Section 134.36.

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 James Smyth at 212-466-2084.

Sincerely,

Robert B. Swierupski
Director,

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