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NY F82218

February 8, 2000

MAR-2 RR:NC:1:113 F82218


Mr. Jose A. Manrique
American Chamber of Commerce in Spain
Tuset, 8 Entlo 3
Barcelona, Spain 08006


Dear Mr. Manrique:

This is in response to your letter dated January 13, 2000 asking whether clamps imported from Spain must be individually marked with country of origin. A sample was not submitted with your letter for review.

The merchandise consists of various sizes of T-bolt hose clamps. You plan to import the clamps in bulk shipments as well as in retail packages. The clamps will be sold to original equipment manufacturers and wholesalers in the United States. The wholesalers may distribute the clamps to retailers who will sell the clamps by individual unit or boxes of multiple units to consumers.

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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

Section 134.1(d), Customs Regulations, defines “ultimate purchaser” as generally the last person in the U.S. who will receive the article in the form in which it was imported.

We will first address the circumstance where the clamps are sold to original equipment manufacturers in bulk condition to be used in the further manufacture of another product, for example, washing machines. 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 example, the imported clamps would be substantially transformed into washing machines as a result of the U.S. processing and lose their separate identity. Therefore, the U.S. manufacturer would be the ultimate purchaser of the imported clamps. Under 19 CFR 134.35 then, only the bulk containers which reach the U.S. manufacturer are required to be marked with the country of origin "Spain".

The second situation presented in your inquiry involves clamps sold to wholesalers, who in turn, will sell the clamps to businesses where the clamps will be marketed at the retail level in various quantities. Here the ultimate purchasers would be the consumers buying the clamps at the store. Your letter infers that this type of clamp will be retail packed before importation, but it does not mention the exact type of container.

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, if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the clamps by viewing the container in which it is packaged, the individual clamps would be excepted from marking under this provision.

Therefore, if the clamps, through the wholesaler are destined to be sold to customers singly at retail level, either each individual clamp or its packaging (blister pack, box, etc.) must be marked with the country of origin. However, should the wholesaler intend to repack the individual clamps in order to sell multiple clamps, a third issue is raised.

As described above, marking the clamp packaging in lieu of marking the article itself is an acceptable country of origin marking for the clamps when sold at the store individually. However, your reference to boxes of multiple units being sold by retailers suggests the possibility that either the wholesaler or retailer will repack the clamps in another container at some point. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception to marking each clamp 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 clamps 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 imported clamps will not be required.

Section 134.26(a), Customs Regulations {19 C.F.R. 134.26(a)}, provides in pertinent part that: If an article subject to these requirements is intended to be repacked in retail containers after its release from Customs custody, or if the port director having custody of the article, has reason to believe such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking , he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part; or (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements. Paragraph (d) of that section specifies the notice that shall be given to the subsequent purchaser or repacker.

Accordingly, where OEM manufacturers or wholesalers may open the outer master containers in order to fulfill smaller orders, they as importers, shall file a certification with the port director as indicated in 19 C.F.R. 134.26(a), and shall provide a notice to their distributors informing them of the marking requirements. If the Customs officials at the port of entry are satisfied that the ultimate purchasers receive the clamps in properly marked containers, the clamps may be excepted from individual marking pursuant to 19 C.F.R. 134.32(d).

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

Your request did not include specific information on any of your proposed methods of marking of the clamps, bulk boxes, or retail packages. Based upon the limited circumstances you outlined, we have attempted to provide a general overview of the laws that would apply to the country of origin marking of your T-bolt hose clamps. Should you wish further clarification of a particular type of importation, please submit precise details of the intended transaction as well as samples of the marking on the clamps you intend to import.

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 James Smyth at 212-637-7008.


Robert B. Swierupski

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