NY K85990 - COUNTRY OF ORIGIN MARKING OF IMPORTED REPLACEMENT PARTS FOR FOOD SLICING MACHINES - United States International Trade Commision Rulings

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NY K85990

June 7, 2004

MAR-2 RR:NC:MM:106 K85990

CATEGORY: MARKING

Mr. Nicholas D’Andrea
Delmar Group
147-55 175th Street
Jamaica, NY 11434

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED REPLACEMENT PARTS FOR FOOD SLICING MACHINES

Dear Mr. D’Andrea:

This is in response to your letter dated May 20, 2004, on behalf of your client Bizerba USA Inc., requesting a ruling on whether the proposed marking of the container in which certain replacement parts are imported with the country of origin in lieu of marking the articles themselves is an acceptable country of origin marking for the imported parts. A marked sample container was not submitted with your letter for review.

The subject replacement parts are made in Germany by Bizerba GMBH and sold exclusively to Bizerba USA Inc. These parts are said to be sold exclusively for food slicing machines produced by Bizerba GMBH. You state that when imported these machines are properly marked with their country of origin, Germany. The replacement parts will not be marked with their country of origin but the outermost container will be marked to indicate the country of origin. You do not indicate whether the parts are individually packed or bulk packed, nor do you indicate who the end user will be or whether the goods are repacked after importation. The replacement parts are specifically manufactured as replacement parts for Bizerba machines and not as universal replacement parts for similar types of machines. You request that the individual replacement parts be excepted from country of origin marking and that the marking of the outermost container in which the goods are imported with the country of origin will be sufficient for the purposes of the marking statute.

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 imported into the U.S. shall 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 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. The "ultimate purchaser" is generally defined in 19 CFR 134.1(d), as the last person in the U.S. who will receive the article in the form in which it was imported.

Section 134.33, Customs Regulations (19 CFR 134.33), sets forth certain classes of articles, known collectively as the J-list, which are excepted from individual country of marking pursuant to 19 U.S.C. 1304(a)(3)(J). However, in the case of any article on the J-list which is imported in a container, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents.

One class of articles on the J-list is "parts for machines imported from the same country as parts." This item has been interpreted to cover replacement parts which are manufactured in the same country as the original machine which is exported to the U.S. As construed by Customs in T.D. 75-85 (March 12, 1975), the following principles are applicable to this exception:

1) The word machine is used in a general sense and also applies to such things as vehicles;

(2) The exception applies to replacement parts for machines which may be manufactured in more than one country, provided that Customs officers are satisfied that the machines exported to the U.S. are made only in one country;

(3) The exception applies to replacement parts made and engineered for use on or in the particular machine involved, and also to parts made to standard or stock designs which are used in producing the machine; and

(4) The exception is applicable only to replacement parts manufactured in the same country as the machine which is exported to the U.S.

The underlying rationale for this particular J-list exception is that if the ultimate purchaser buys a specific machine which is properly marked as to its country of origin, then there is no need to mark a replacement part for that machine if it is manufactured in the same country as the original machine. The presumption is that the ultimate purchaser will assume that unless otherwise marked, the replacement part was manufactured as the machine itself.

Accordingly, in T.D. 75-85, Customs held that replacement parts for imported vehicles were excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(J), since the parts and vehicles were both manufactured in Germany. In addition, Customs stated that the exception for the German parts could apply even though vehicle models other than the vehicle model at issue were manufactured in countries other than Germany, provided that Customs officers were satisfied that the vehicle models exported to the U.S. market were only made in Germany. However, those parts made in countries other than Germany were not excepted from marking under the J-list.

In Headquarters Ruling Letter (HRL) 731864 dated April 7, 1989, Customs also held that although a Canadian entity manufactured machines in various countries, the imported Canadian parts were excepted from marking under the J-list since they were replacement parts for machines which were only manufactured in Canada. Relying on HRL 720420 dated September 28, 1982, which allowed Customs officers at the port of entry to require an appropriate written statement to the effect that all replacement parts and the machine were made in the same country before allowing the marking exception under the J-list, HRL 731864 stated that there was no reason to deny the exception from marking where the importer has shown that both the particular machines and the parts for these machines were made only in one country, namely Canada, and that the parts do not fit any other machine. See also ORR Ruling 310-70 dated March 30, 1970 (the marking exception applies to repair or replacement parts for machines which are known to be manufactured in only one country, and to repair or replacement parts made and engineered for the particular machine involved, although conceivably they could be used on some other machine; however if parts were manufactured in another country other than the country in which the machine was made, the parts would be subject to marking unless they were exempt under some other provision of 19 U.S.C. 1304); and HRL 732544 dated July 21, 1989 (parts produced in Mexico and used to service hand tools only produced in Mexico, were excepted from marking requirements under the J-list; however, if the parts were repacked into new containers after leaving Customs custody, the new containers had to be marked to indicate to the ultimate purchaser the country of origin of the parts, as required by 19 CFR 134.25.)

As provided in 19 CFR 134.25, if the imported J-list product will be repacked prior to sale to the ultimate purchaser, the importer must certify to Customs that he will properly mark the new package or alternatively notify the repacker of the obligation to mark the new package. The certification procedures, which are for the purpose of ensuring that despite the repacking, the ultimate purchaser will be advised of the country of origin, apply to imported J-list articles processed and repacked after importation unless the articles are substantially transformed prior to repacking.

Based on the facts of this case, we accept your assertion that the subject replacement parts are "parts for machines imported from the same country as parts." These parts are produced by Bizerba in Germany and are replacement parts for machines which were also manufactured by Bizerba in Germany and purchased by Bizerba USA. Accordingly, since the machines and the replacement parts are both manufactured in Germany, the replacement parts are excepted from marking requirements under the J-list. Proof, however, may be requested by the Customs officer at the port of entry that the machines imported into the U.S. are only produced in one country, and that the replacement parts for which an exception is sought are produced in the same country in which the machines are produced.

Based on the information you submitted, the marking requirements of 19 U.S.C. 1304 will be satisfied if the outermost container (i.e., the shipping container) of the replacement parts is marked "Made in Germany," the origin of the replacement parts; the certification procedures of 19 CFR 134.25 are followed if the goods are repacked for a purchaser other than Bizerba USA; and each bag in which the replacement parts are repacked, contains the marking "Made in Germany" and is the outermost container in which the ultimate purchaser receives these articles.

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 Patrick Wholey at 646-733-3013.

Sincerely,

Robert B. Swierupski
Director,

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