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HQ 968057





March 16, 2006

MAR-2 RR:CTC:TCM 968057 RSD

CATEGORY: MARKING

Mr. Daryl Klein
Director of Operations
J&J Instruments, Inc.
737 East Elizabeth Avenue
Linden, New Jersey 07036

Dear Mr. Klein:

This is in response to your letter dated January 6, 2006, concerning your request for a ruling on the country of origin marking requirements of dental and medical instruments that are imported into the United States and put into a warehouse for inspection before being exported.

FACTS:

According to your letter, your company is an importer and wholesaler of dental and medical instruments. The products that you distribute are made in Pakistan. After importation, the products are put in your warehouse located in New Jersey. When the imported products are sold in the United States, they will be properly marked with their country of origin.

You state that you have a new customer in Europe that wants the articles to be private labeled without any country of origin markings put anywhere on the products or their packaging. According to your letter, this would be acceptable to the Customs officials of the country where your customer is located, but you do not disclose which country is involved. To comply with your customer’s wishes, you want to import the products into the United States without any country of origin markings and inspect them in your warehouse. After this inspection, the products will be sent to Europe. Because the products will not enter the commerce of the United States, you inquire if there is a legal way to avoid having to mark them with their country of origin at the time they are imported into the United States. Apparently, an employee of U.S. Customs and Border Protection (CBP) has previously advised you that you should not enter the merchandise under a consumption entry and that you should instead enter the merchandise under a bond.

ISSUE:

Whether medical and dental instruments, imported into a warehouse and entered under bond for export without being withdrawn for consumption into the United States, are subject to the country of origin marking requirements of 19 U.S.C. 1304.

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 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 are produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co, v. United States, 27 C.C.P.A. 297 at 302 (1940).

Part 134, Customs and Border Protection (CBP) Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.41(b), Customs Regulations (19 CFR §134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.

In addition, §134.43(a), CBP Regulations (19 CFR 134.43(a)), places special marking requirements on certain products, including surgical instruments. 19 CFR 134.43(a), in pertinent part, reads:
articles of a class or kind listed below shall be marked legibly and conspicuously by die stamping, cast-in-the-mold lettering, etching (acid or electrolytic), engraving, or by means of metal plates which bear the prescribed marking and which are securely attached to the article in a conspicuous place by welding, screws, or rivets: knives, forks, steels, cleavers, clippers, shears, scissors, safety razors, blades for safety razors, surgical instruments, dental instruments, scientific and laboratory instruments, pliers, pincers, nippers and hinged hand tools for holding and splicing wire, vacuum containers, and parts of the above articles. (emphasis added)

However, CBP has previously ruled that articles may be excepted from the country of origin marking requirements of 19 U.S.C. 1304, under one of the country of origin marking exceptions that is set forth in 19 CFR §134.32 even if they are one of the articles that is subject to the special marking requirements of 19 CFR 134.43(a). See HQ 562658, dated April 25, 2003.

Part 134.32, CBP Regulations (19 CFR 134.32) sets forth some of the general exceptions to the marking requirements of 19 U.S.C. 1304. In particular, section 134.32(j), CBP Regulations (19 CFR 134.32(j)), provides that articles entered or withdrawn from a warehouse for immediate exportation or for transportation and exportation are excepted from the country of origin marking requirements of 19 U.S.C. 1304. This regulation applies to situations, such as in the case presented, where merchandise enters the United States or is withdrawn from a warehouse, solely for exportation or transportation and exportation to another country and is never consumed or used in the United States. However, 19 CFR 134.32(j) does not exempt articles entered into the United States which are intended for distribution and consumption domestically.

In HQ 735443, dated October 27, 1994, CBP considered the country of origin marking requirements for bottles warehoused in a bonded facility. The importer had no intention of entering the bottles into the commerce of the United States, and the sole purpose in transporting the goods from Mexico to the United States was to allow the importer access to the more frequent shipping schedule available in the United States. We ruled that pursuant to the exception from marking provided for in 19 CFR 34.32(j), the goods and their outermost packing containers were not subject to the marking requirements of Section 304 of the Tariff Act of 1930 as amended (19 U.S.C. 1304). See also HQ 563021, dated July 7, 2004. Our decision was based in large part on a court opinion in East Asiatic Co, Inc. v. United States, 27 C.C.P.A. 364, 112 (1940), which held that imported articles and their containers that were placed in a bonded warehouse to await transportation and exportation and were not destined for consumption or use in the United States were excepted from the marking requirements of Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304).

Based on the foregoing analysis, in this instance, we find that pursuant to 19 CFR 134.32(j), the imported dental and medical instruments are not subject to the marking requirements of Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304) so long as these products are entered and withdrawn from a warehouse for immediate exportation or for transportation and exportation. This means neither the imported articles nor their containers are required to be marked to indicate their country of origin. However, this exception is not applicable if the goods are entered for consumption, whether or not they are subsequently exported.

HOLDING:

The dental and medical instruments that are imported, transported in bond to a bonded warehouse and then withdrawn for immediate exportation or transportation and exportation, are excepted from the country of origin marking requirements of 19 U.S.C. 1304.

Sincerely,

Gail Hamill, Chief
Classification and Marking Branch

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