NY A89267 - COUNTRY OF ORIGIN MARKING OF IMPORTED BUNGEE CORDS - United States International Trade Commision Rulings

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NY A89267

November 25, 1996

MAR-2 RR:NC:TP:351:JK A89267

CATEGORY: MARKING

Mr. Marc Hurlbert
Import Traders Inc.
333 Southwestern Blvd., Suite 202
Sugar Land, TX 77478

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED BUNGEE CORDS

Dear Mr. Hurlbert:

This is in response to your undated letter received here on November 6, 1996, requesting a ruling on whether imported bungee cords must be individually marked with the country of origin if they are later to be packaged in the U.S. with another item.

FACTS

You submitted a polybag containing three bungee cords, each consisting of a 2-foot length of textile-covered rubber cord with a simple metal hook attached to each end. You state that these are made in China; the polybag is clearly marked "Made in China," but the individual bungee cords are not marked. You state that you "will be importing this exact item from China in the near future, except the cords will be packed 100 pieces per polybag." You indicate that it would be difficult to label these cords individually, and ask whether marking the polybag is sufficient.

In your supplemental FAX message of November 20, you further explained that your customer will package each of these cords inside a 2 by 1.5 by 1.5 foot plastic storage container with a lid, which will be made in the USA. The cord serves as an accessory that is used to hold any extra items on top of the lid of the plastic box. The storage container will be sold at retail with the bungee cord inside it. You do not know whether or how the storage container will be labelled. You also mention the possibility of attaching a small adhesive label to each bungee cord; presumably this label will clearly indicate that the product is made in China. However, we assume that the cord and any label it might have will not be visible once it is packed inside the storage container.

ANALYSIS

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 134.35(a), Customs Regulations (19 CFR 134.35(a) states that, other than goods of a NAFTA country,

An article used in the United States in manufacture which results in an article having a name, character, or use differing from that of the imported article, will be within the principle of the decision in the case of United States v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98). Under this principle, the manufacturer or processor in the United States who converts or combines the imported article into the different article will be considered the "ultimate purchaser" of the imported article within the contemplation of section 304(a), Tariff Act of 1930, as amended (19 U.S.C. 1304(a)), and the article shall be excepted from marking. The outermost containers of the imported articles shall be marked in accord with this part.

In this case, the bungee cords do not acquire a new "name, character or use" as a result of packaging them inside plastic storage containers for retail sale. The bungee cords are completely finished articles when imported, there is no manufacturing performed, the repackaging operation is not complex, requires no skill and is not time consuming. The bungee cords are not attached to the plastic storage containers at the time of sale nor are they ever intended to be permanently attached. Accordingly, we find that the bungee cords do not lose their separate identity when they are packaged with the plastic storage containers and that neither Import Traders Inc., nor the company that packages the plastic storage containers, would be considered the ultimate purchaser of the imported bungee cords under 19 CFR 134.35.

Section 134.1(d), Customs Regulations (19 CFR 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. The definition then gives examples of who might be the ultimate purchaser if the imported article is used in manufacture, if the imported article is sold at retail in its imported form and if an imported article is distributed as a gift. If an article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. Since the imported bungee cords are sold at retail in their imported form, the retail purchaser is the ultimate purchaser and the cords must be individually marked with their country of origin. In addition, because the bungee cords will be repacked in the U.S. prior to sale to the ultimate purchaser, the certification requirements of 19 CFR 134.26 apply.

However, if certain conditions are met, the port director may authorize an exception under 19 CFR 134.32(d) from marking the bungee cords at the time of importation provided the retail containers will indicate the country of origin of the cords. In this regard, 19 CFR 134.34(a) provides that:
an exception under section 134.32(d) may be authorized in the discretion of the port director for imported articles which are to be repacked after release from Customs custody under the following conditions:

(1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.

(2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to liquidation of the entry.

Whether or not the port director authorizes the above exception, the plastic storage containers in which the bungee cords are sold at retail, must satisfy the marking requirements provided in 19 CFR Part 134.

HOLDING

The retail purchaser of the plastic storage containers, each of which contains a bungee cord, is the ultimate purchaser of the imported cords and they must be marked to indicate that their country of origin is China. Marking of the polybag in which 100 unmarked cords will be imported will not be sufficient. However, if certain conditions are met, the port director may authorize an exception under 19 CFR 134.32(d) from marking the bungee cords at the time of importation provided the retail containers (i.e., the plastic storage containers) will indicate the country of origin of the cords.

The plastic storage containers, in which the bungee cords are packed after importation, must satisfy the marking requirements provided in 19 CFR Part 134. In addition, because the cords will be repackaged in the U.S., the certification requirements set forth in 19 CFR 134.26 apply.

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 Jeff Konzet at 212-466-5885.

Sincerely,

Roger J. Silvestri
Director

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