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NY A80152

March 8, 1996

MAR-2 95:RR:NC:FC: 225


Ms. Sandi Shelton
The Susan Wakeen Doll Company, Inc.
425 Bantam Road
P.O. Box 1321
Litchfield, CT 06759


Dear Ms. Shelton:

This is in response to your letter dated February 7, 1996, received in this office on February 8, 1996, requesting a ruling on the marking requirements for an imported body sack, which we will refer to as a torso skin. The issue centers on whether or not the skin, in its imported condition, may be excepted from the country of origin marking requirements and whether or not the skin is considered substantially transformed by further manufacturing here in the U.S. An unmarked sample was submitted with your letter for review and is returned herewith.

The unfinished article is composed of fabric pieces, sewn together to create the skin of a torso. An opening at the neck of the cavity exists to permit insertion of the stuffing material and attachment of the head. Strips of cloth are sewn to the cavity in a manner which will facilitate placement of the limbs. Plastic fasteners are sewn along the outer edges where the figure's appendages will later be secured.

According to your letter, the imported product is cut and sewn to specifications in China with material purchased from the U.S. Upon importation, the skin will be stuffed, vinyl arms, legs and head will be attached, eyelashes affixed to the eyes, a wig is cut, glued and styled, the completed doll is dressed in a textile outfit and undergoes inspection at various stages of processing.

It is apparent that the manufacturing process undertaken in the U.S. would clearly conceal any attempted marking of the product in the condition in which it is imported.

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. 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. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported torso skin is substantially transformed as a result of the U.S. processing, and therefore the U.S. manufacturer is the ultimate purchaser of the imported skin and only the containers are required to be marked with the country of origin "Made in China".

However, because a U.S. reference appears on the imported skins when they are imported into the U.S., it is necessary to consider the necessity for additional marking. 19 CFR 134.36(b) provides that an exception from marking shall not apply to any article or retail container bearing any word letters, names, or symbols described in section 19 CFR 134.46 or 19 CFR 134.47 (e.g. geographic references which imply that article was made or produced in a country other than actual country of origin). The purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of an article as to the actual origin of the imported good.

Customs has recently determined that the special requirements of 19 CFR 134.36(b) should not be applied automatically to all imported articles or their containers which bear a non-origin geographical reference. In instances where the imported article is substantially transformed in the U.S. by the ultimate purchaser (U.S. manufacturer), as with the imported torso skin in this case, Customs has held that the special requirements of 19 CFR 134.36(b) and 19 CFR 134.46 are not applicable since the ultimate purchaser would not be misled by the U.S. reference.

This same rationale applies to this case. The U.S. manufacturer which substantially transforms the imported torso skin is the ultimate purchaser. Assuming, the ultimate purchaser receives the imported skin in containers properly marked with the country of origin, it would know the country of origin of the imported torso skin and would not be misled by the U.S. reference "Litchfield, CT 06759 U.S.A.". Therefore, the special marking requirements of 19 CFR 134.36(b) are not applicable.

Accordingly, the imported torso skin which is processed in the manner described above is not required to be individually marked with the country of origin and can be imported marked with a U.S. reference "Litchfield, CT 06759 U.S.A." provided they are imported in containers properly marked with the country of origin and that the imported skin will reach the ultimate purchaser (U.S. manufacturer) in the original marked containers and the U.S. manufacturer will only use the imported torso skin as described above.

Please note that this ruling does not address whether the product may be marked with the U.S.A. symbol. The determination of marking an item as "Made in USA" is under the jurisdiction of the Federal Trade Commission and not the U.S. Customs Service. We therefore recommend that you contact the Federal Trade Commission, Division of Enforcement, located at 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20580, concerning their requirements on U.S. marking.

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 Alice J. Wong at 212-466-5538.


Roger J. Silvestri

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