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NY D83588

November 12, 1998

MAR-2 RR:NC:SP:221 D83588


Mr. Marc S. Greenberg
American Shipping Company Inc.
140 Sylvan Avenue
Englewood Cliffs, NJ 07632


Dear Mr. Greenberg:

This is in response to your letter dated October 12, 1998, on behalf of Evenflo Corporation, requesting a ruling on the country of origin of infant pacifiers made of components from both Thailand and France. You have also requested a ruling on whether it is acceptable to mark the container in which the imported pacifiers are repackaged in the U.S. with the country of origin in lieu of marking the article itself when no other markings appear on the article itself. A marked sample container was not submitted with your letter for review.

The imported product is an infant pacifier. The nipple of the pacifier will be manufactured in Thailand and is made of silicone, a plastics material. The nipples are shipped in bulk to France where they are assembled with the balance of the components into a complete pacifier. The balance of the components will be manufactured in France. The completed pacifier is then shipped from France into the United States. The pacifiers will be packed for export in bulk and will not be individually marked with the country of origin at the time of importation. Subsequent to importation the article will be repacked. You indicate that the retail packaging will indicate the article's proper country of origin in a conspicuous manner, but you have no sample at this time of the proposed marking.

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.

The "country of origin" is defined in 19 CFR 134.1(b) as "the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the 'country of origin' within the meaning of this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin." For tariff purposes, the courts have held that a substantial transformation occurs if a new and different article emerges having a distinctive name, character or use. Anheuser-Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982). In determining whether the combining of parts or components constitutes a substantial transformation, the issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article. Belcrest Linens v. United States, 6 CIT 204, 573 F.Supp. 1149 (1983), aff'd, 2 Fed. Cir. 105, 741 F.2d 1368 (1984). Assembly operations which are minimal or simple, as opposed to complex or meaningful, will generally not result in a substantial transformation. See, C.S.D. 85-25 (September 25, 1984).

In determining whether the nipple is sufficiently transformed in France by virtue of its being combined with the remaining components, we note that the process of combining the nipple with the other components is not complex. The nipple remains visible and does not lose its identity after the combining, is functionally necessary to the operation of the finished article, and is the dominant component of the completed pacifier. Accordingly, the nipple is not substantially transformed when it is combined with the other parts to form the infant pacifier, and the ultimate purchaser of the nipple is the purchaser of the pacifier. The pacifier must be marked to indicate the country of origin of the nipple. Because the nipple is combined with other components before delivery to the ultimate purchaser, the nipple must be marked in a manner which clearly shows that the origin indicated, i.e., Thailand, is that of the nipple alone (e.g., Pacifier Made in France, Nipple Made in Thailand).

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. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the pacifier is the consumer who purchases the product at retail.

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. However, since the pacifiers are not imported in their marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the port director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized in the discretion of the port director under 19 CFR 134.32(d) 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 the liquidation of the entry.

In this case, assuming that the port director is satisfied that the imported pacifiers will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the port director may authorize an exception under 19 CFR 134.32(d), in which case marking of the individual imported pacifiers will not be required.

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.


Robert B. Swierupski

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