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NY L81418





December 20, 2004

MAR-2 RR:NC:1:110 L81418

CATEGORY: MARKING

Mr. Jeff Satterlee
Russell A. Farrow (U.S.) Inc.
27221 Northline Road
Taylor, MI 48180-4400

RE: THE COUNTRY OF ORIGIN MARKING OF A RETAIL PACKAGE; ARTICLE 509

Dear Mr. Satterlee:

This is in response to your letter dated November 30, 2004, requesting a ruling on whether the proposed marking "Made in Canada" and “Accessories made in China, Japan, Turkey, United States and/or Canada” is an acceptable country of origin marking for the retail package of the Blackberry Handheld imported from Canada by your client Research in Motion Limited (RIM). A marked sample of the retail package with country of origin labels was submitted with your letter for review and will be returned to you. Clarification was sought and received from you on December 14, 2004 in an email. As per this correspondence, the retail box will be sealed by mylar at the time of importation.

In your ruling request you propose two scenarios. You state that RIM imports accessories into Canada at various times from China, Japan, Turkey and the United States based on it’s pricing and the supply of merchandise available. These accessories are then packaged ready for retail sale together with the Blackberry Handheld for import into the United States. You state that all accessories are marked with their respective countries of origin before being packaged together for retail sale with the Blackberry Handheld. You claim that it would be cost prohibitive for RIM to change the country of origin markings on their retail package each time an accessory is acquired from a different country or supplier based on the accessories availability or price. Your request presents two marking scenarios. In scenario one, RIM would like to be able to list all the countries in which products are currently being acquired for completion of the set on it retail package. The submitted sample marking indicates that the BlackBerry is “Made In Canada” and that “Accessories made in China, Japan, Turkey, United States, and/or Canada.”

In scenario two you state that RIM would like to be able to have their retail packaging marked to better meet industry standards that are currently in practice within the cellular telephone and personal digital handheld market. RIM seeks to satisfy the country of origin marking law by having the retail packaging for it’s Blackberry Handheld printed with the phrase “Made in Canada” and “Other items imported, See each item for country of origin.” RIM will ensures that the accessories within the retail packaging are marked with their specific country of origin.

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 (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

First, it is noted that in scenario one the proposed marking indicates that one or more of the accessories may be made in the “United States.” If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. §1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the U.S.

HQ 561519, March 30, 2000, discuses the use of disjunctive country of origin marking, such as proposed in scenario one. It is generally Customs’ policy not to accept disjunctive country of origin marking, because it does not indicate the actual country of origin as required by 19 U.S.C. 1304. In the limited cases where such marking was approved, it was predicated on the goods being individually marked with their country of origin in an unsealed carton or packed in a manner that allowed inspection with additional labeling directing the ultimate consignee to inspect the individual articles for actual country of origin.

In scenario one the proposed marking of the retail carton with disjunctive country of origin marking is not acceptable, because the carton is sealed and the ultimate consignee is not able to open the carton and inspect the individual articles for their country of origin. The proposed disjunctive marking is also not acceptable, because it does not direct the ultimate consignee to inspect the accessories for their actual country of origin. Therefore, the proposed marking of imported Blackberry Handhelds with accessories, as described in scenario one, is found not to be an acceptable country of origin marking and does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

19 CFR 134.24(d)(2) addressed the issue of articles which are sold in sealed containers. Sealed containers that are normally unopened by the ultimate purchaser before purchase must be marked to indicate the country of origin of their contents.

In scenario two the proposed marking of the retail carton as described above is not acceptable, because the carton is sealed and the ultimate consignee is not able to open the carton and inspect the individual articles for their country of origin prior to purchase. Therefore, the proposed marking of imported Blackberry Handhelds with accessories, as described in scenario two, is found not to be an acceptable country of origin marking and does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, Bureau of Customs and Border Protection, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.

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 Eileen S. Kaplan at 646-733-3016.

Sincerely,

Robert B. Swierupski
Director,

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