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NY 818222

February 9, 1996

MAR-2 RR:NC:TP:221 818222


Ms. Helen I. Sugar
The Buffalo Customhouse Brokerage Co. Inc. 1245 Niagara Street
Buffalo, NY 14213

RE: Country of origin marking of imported polycarbonate packaging trays from various countries.

Dear Ms. Sugar:

This is in response to your letter dated January 11, 1996, on behalf of Target Recycling, Canada, requesting a ruling on whether imported trays are required to be individually marked with the country of origin. An unmarked sample was submitted with your letter for review.

The merchandise consists of used polycarbonate "Jedec" trays, designed as packaging for eproms. After being emptied of their eproms, the used trays are returned to the United States, where they are examined and tested. Any which are too damaged for reuse as packaging will be forwarded to a recycling center to be ground. The rest will be cleaned and tested to see if they are still able to resist or discharge static electricity. If necessary, some of the trays will be recoated. They then will be reused as packaging trays for eproms. You state that approximately 70 percent of the trays are made in the United States, 15 percent are made in Japan, and the remainder are made in Germany, Singapore or Hong Kong.

You propose marking the cartons with a label indicating "Country of origin of contents is from either one or more of the following: U.S., Japan, Germany, Singapore, Korea, China, Taiwan, or Malaysia." (We note that this marking lists other countries in addition to the ones you identify in your letter as potential countries of origin of the trays.)

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 this case, the imported trays are not substantially transformed as a result of the U.S. processing, so they are not considered to be products of the United States. Therefore, the ultimate purchasers of the imported trays are the semiconductor companies who package the eproms into the trays.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, marking the container in which the trays are imported and sold to the semiconductor companies in lieu of marking the individual trays is an acceptable country of origin marking provided the district director is satisfied that the trays will remain in the marked containers until they reach the ultimate purchaser.

You propose marking the containers to indicate that the trays may be a product of one or more of all of the possible countries of origin. Customs policy is that in most circumstances, it is not acceptable to mark an article in the alternative (either/or) or disjunctive (or), since this does not indicate the actual country of origin as required by 19 U.S.C. 1304. Customs has allowed articles which are commingled and randomly packaged to be marked with a phrase indicating all of the countries of origin, linked by the conjunctive "and" rather than the disjunctive "or," since this properly informs the ultimate purchaser of the foreign origin of the fungible merchandise inside. This is acceptable only when it is highly probable that a carton would contain some pieces from all of the listed countries.

If a carton contains trays from only one or several of the possible countries, then only those actual countries of origin may be listed. When the trays are of U.S. origin, no country of origin marking is necessary. If the carton does not contain pieces from all the identified countries listed on the package, then marking in the disjunctive is acceptable only if Customs is satisfied that fully accurate marking would amount to an economic prohibition. If you wish a ruling that in this case it would be economically prohibitive to identify the actual countries of origin, you must submit evidence to substantiate your claim to the Director, Commercial Rulings Division, U.S. Customs Service Headquarters, 1301 Constitution Avenue N.W., Franklin Court, 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 Joan Mazzola at 212-466-5580.


Roger J. Silvestri

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