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HQ H015428

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November 9, 2007

CLA-2 OT:RR:CTF:TCM H015428 KSH

CATEGORY: MARKING

Ms. Lorraine Calzetta
Gyrus ACMI Inc.
136 Turnpike Road
Southborough MA 01772

Dear Ms. Calzetta:

This is in response to a letter dated July 16, 2007, submitted by a former officer of your company, concerning a request for a ruling on the country of origin marking requirements of disposable electrodes that are imported into the United States and sterilized before being exported to Europe.

FACTS:

According to the July 16, 2007 letter, your company manufactures disposable electrodes in Mexico that are used in electro-surgery to scrap, cut or coagulate tissues inside the body or organs. The devices are resold to another manufacturer for distribution within Europe. The devices enter the U.S. for sterilization processing via ethylien oxide. The devices remain in the original packaging which is labeled in accordance with FDA requirements. That packaging is placed in a secondary over-box also labeled in accordance with FDA requirements, containing six to twelve electrode packages. These boxes are then placed into bulk containers used for shipping protection and grouping for the sterilization process. After sterilization, the bulk container is removed and the electrodes are exported in the unmarked secondary over-box. Only the bulk container will be marked with the country of origin.

You state that the manufacturer to whom you distribute in Europe 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 European Customs officials of the country where your customer is located. To comply with your customer’s wishes, you want to import the products into the United States without any country of origin markings on the individual unit package and secondary over-box. You inquire whether marking “Made in Mexico” on the bulk containers is sufficient for U.S. Customs and Border Protection’s (CBP) purposes.

ISSUE:

Whether the disposable electrodes, imported into the U.S. without being withdrawn for consumption, are subject to the country of origin marking requirements of 19 U.S.C. 1304.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, 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), CBP 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. 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.

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 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 East Asiatic Co., Inc. v. United States, 27 C.C.P.A. 364, C.A.D. 112 (1940), which involved an interpretation of the word "importation" as used in the statute governing additional duties for failure to mark, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), the court elaborated that "import" in the tariff sense implies the bringing into the U.S. of foreign goods for use or consumption here. With respect to marking the court stated that:

[W]hen 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 ... . East Asiatic Co., Inc., 27 C.C.P.A. at 366-67.

Similarly, section 134.32(d), CBP Regulations (19 CFR 134.32(d)), provides an exception to the country of origin marking requirements for "[a]rticles for which the marking of the containers will reasonably indicate the origin of the articles." Articles for which the marking of the containers will reasonably indicate their origin are excepted from individual marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). This exception applies only if the article in question is imported in a properly marked container and CBP is satisfied that the article will reach the ultimate purchaser in this original marked unopened 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.

In Headquarters Ruling Letter (HQ) 732851, dated January 26, 1990, CBP held that when an imported product is to be exported, only the ultimate purchaser in the U.S. of the imported article must be informed of the country of origin of the product. CBP found that as long as the importer certified to CBP that the articles would be exported, and the ultimate purchaser in the U.S. receives the article in a properly marked container, the individual articles need not be marked with their country of origin. See also, HQ 734409, dated September 25, 1989.

The sole purpose in entering the goods from Mexico into the U.S. is to sterilize and export them to Europe. Thus, in accordance with the exception to marking provided for in part 134.32(d), CBP Regulations (19 CFR 134.32(d)), as long as your company receives the goods in bulk containers which are properly marked with their country of origin, the goods are excepted from the marking requirements of Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304).

HOLDING:

The individual unit package and secondary over-box for the disposable electrodes imported for exportation to Europe are excepted from the marking requirements of Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provided the outermost container in which the disposable electrodes are received is marked “Made in Mexico”, as proposed.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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