HQ 562050 - Request for internal advice; repackaging; 19 CFR 134.32(d) - United States International Trade Commision Rulings

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HQ 562050

May 21, 2001

MAR-2 RR:CR:SM 562050 KSG

CATEGORY: MARKING

Port Director
U.S. Customs Service
3600 East Paisano, Bldg B
El Paso, Texas 79905

RE: Request for internal advice; repackaging; 19 CFR 134.32(d)

Dear Director:

This is in response to your memorandum of November 7, 2000, requesting internal advice regarding the country of origin marking of imported cable assemblies.

FACTS:

The broker submitted the request for internal advice on behalf of Bergen Cable Technologies, Inc. ("Bergen"). The cable assemblies are made in Mexico. The broker states that the cable assemblies are used in several industries, especially the automotive industry. Most of the assemblies are used as components of complete car seats or they are assembled into different parts of automobiles, such as glove compartments or trunk opening mechanisms. Bergen ships the cable assemblies to original equipment manufacturers and occasionally a small percentage of the assemblies may be sold as service parts by original equipment manufacturers.

The imported cable assemblies are packed in bulk into corrugated boxes. The cable assemblies are not individually marked. These boxes are marked with the following statement:

NOTICE TO SUBSEQUENT PURCHASER OR PEPACKER

These articles are imported. The requirements of 19 U.S.C. 1304 and 19 CFR part 134 provide that the articles in their containers must be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article or container will permit, in such a manner as to indicate to an ultimate purchaser in the United States, the English name of the country of origin of the article.

ASSEMBLED IN MEXICO

Bergen will also stamp their invoices with the "Notice to subsequent purchaser or repacker" required in 19 CFR 134.26. Bergen has requested that the cable assemblies be excepted from individual country of origin marking. Your office has taken the position that letters from all the ultimate consignees are required, including Bergen's direct customers and other purchasers in those cases in which assemblies are sold as spare parts.

Bergen states that it would be an administrative burden and costly to submit the requested letters because its customer base is dynamic and changes frequently.

ISSUE:

What are the country of origin marking requirements for the imported cable assemblies?

LAW AND ANALYSIS:

Section 304 of the 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. Congressional intent in enacting 19 U.S.C. 1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Section 134.1(d), Customs Regulations, defines “ultimate purchaser” as generally the last person in the U.S. who will receive the article in the form in which it was imported.

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 the article. This exception is normally applied in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser will receive it in the original unopened marked container. Relevant factors regarding whether an article is likely to remain in its original container include the chain of distribution, the type of container, and the nature of the article. However, since Bergen will sell cable assemblies to original equipment manufacturers who may sell them as service parts, the requirements of 19 CFR 134.26 must be satisfied.

Section 134.26(a), Customs Regulations (19 CFR 134.26(a)), provides in pertinent part that:

If an imported article subject to these requirements is intended to be repacked in retail containers (e.g. blister packs) after its release from Customs custody, or if the port director having custody of the article, has reason to believe that such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part; or (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements.

The certificate of marking to be provided by the importer to Customs is set forth at 19 CFR 134.26(a), and this paragraph indicates that it may be submitted in blanket form to cover all importations of a particular product for a given period, but that the certificate must be filed at each port where the article(s) is entered.

The notice that shall be given to the subsequent purchaser or repacker is set forth at 19 CFR 134.26(d). Accordingly, as Bergen supplies the cable assemblies to original equipment manufacturers, Bergen, as the importer, must file a certification with the port director as indicated in 19 CFR 134.26(a), and must provide notice to the original equipment manufacturers (who may resell the parts), as indicated in 19 CFR 134.26(d).

Customs ruled in Headquarters Ruling Letter ("HRL") 560383, dated August 15, 1997, that imported automobile parts could be excepted from individual marking pursuant to 19 CFR 134.26(d), if the outer containers were properly marked with the parts country of origin, and the port was satisfied that the ultimate purchasers would receive the parts in properly marked containers. In instances where the parts were removed from their bulk marked container and repacked in properly marked containers, the certification requirements and notices to the subsequent purchaser or repacker under 19 CFR 134.26(a) and (d) had to be satisfied. Customs stated that the importer was not required to provide Customs with a list of the service centers or etail stores to which the parts were sold in order to receive the container marking exception under 19 CFR 134.32(d). However, the port could request additional evidence on an as needed basis to ensure that the articles reached the ultimate purchaser in properly marked containers.

This case is similar to HRL 560383 and we believe that the analysis is applicable. The cable assemblies repacked in properly marked containers may be excepted from country of origin marking under 19 CFR 134.32(d). The boxes in which the original equipment manufacturers receive the cable assemblies are labeled with the notice set forth in 19 CFR 134.26(d), thereby ensuring that the subsequent purchaser or repacker is aware of the country of origin marking requirements. Your office can request additional evidence on an as needed basis to ensure that the cable assemblies reach the ultimate purchasers in properly marked containers.

HOLDING:

The imported cable assemblies may be excepted from individual country of origin marking under 19 CFR 134.32(d), provided your office is satisfied that there is compliance with 19 CFR 134.26 and the ultimate purchasers will receive the cable assemblies in properly marked containers. Your office can request letters from customers on an as needed basis to ensure that the cable assemblies reach the ultimate purchasers in properly marked containers.

This decision should be mailed by your office to the internal advice requester no late than sixth days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other means of public distribution.

Sincerely,

John Durant
Director
Commercial Rulings Division

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