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January 7, 1999

MAR-2 RR:NC:115 D85948


Mr. Jim Caverly
Datel, Inc.
11 Cabot Boulevard
Mansfield, MA 02048


Dear Mr. Caverly:

This is in response to your letter dated December 3, 1998 requesting a ruling on whether imported metal shells are required to be individually marked with the country of origin if it is later to be processed in the U.S. by a U.S. manufacturer. A marked sample was not submitted with your letter for review.

In your letter you state that the metal shells are manufactured in China with specific drawings supplied by Datel, Inc. The shells are used as outer casing for the power supplies. Datel, Inc. manufactures and sells DC/DC converters. The imported metal shells are not sold individually in their imported state, nor handled by anyone else (sub contractors, customers, suppliers, etc.).

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 metal shells are substantially transformed as a result of the U.S. processing, and therefore the U.S. manufacturer is the ultimate purchaser of the imported metal shells and under 19 CFR 134.35 only the containers which reach the ultimate purchaser are required to be marked with the country of origin China.

In your inquiry you raise the question of having the metal shells marked “Made in USA” in China. It has been determined that it is more economically feasible to have the marking done at the time of manufacturing in China. It is screened onto the outside of the shell at the same time your logo and product identification are marked. You also state the cost of producing a new screen, equipment, ink, and labor make processing this marking of “Made in USA” prohibitive to do in your Mansfield factory.

This office cannot address the issue of marking the finished good as “Made in USA”, you are advised to contact the Federal Trade Commission as they have the authority to approve when an article can be marked “Made in USA”. The office may be contacted at (202) 326-2222.

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 Melvyn Birnbaum at 212-466-5487.


Robert B. Swierupski

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