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NY I83055

July 11, 2002

MAR-2 RR:NC:226:I83055


Mr. Allen Sutter
J.W. Hampton, Jr. and Co., Inc.
161-15 Rockaway Blvd.
Jamaica, NY 11434


Dear Mr. Sutter:

This is in response to your letter dated June 11, 2002, on behalf of Gemco Ware, requesting a marking ruling on a situation in which the body of a glass carafe will be made in the Czech Republic. The glass carafe alone will be imported; the handle, top and neckband will be added in the United States.

In your letter you proposed that the imported carafe not be marked and that subsequently (after the handle and other pieces are added but before the merchandise is marketed to consumers), the article will be placed in packaging marked “Glass made in Czech Republic – product assembled in the USA.”

A sample of the marked packing material (i.e., the box) which your client proposes to use to repack the merchandise was submitted with your ruling request. This sample will be returned to you.

Your proposed marking is not acceptable. Since the carafe itself is made in the Czech Republic, it is false to say that the product is assembled in the United States. The product is simply made in the Czech Republic and upon importation the carafe itself could simply be marked “Czech Republic” or “Made in Czech Republic.”

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.

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.

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. AnheuserBusch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982).

In this case, the addition of the handle, top and neckband does not result in a substantial transformation. The carafe with these additional pieces does not have a distinctive name, character or use different from the carafe without these additional pieces, and therefore remains a good of the Czech Republic for marking purposes. It is not regarded as an article assembled in the United States.

In your request you suggested that the packaging rather than the item itself could be marked subsequent to importation and prior to the sale to the consumer. Marking of a container would be acceptable only if we can be certain that the product will reach the ultimate purchaser in that container. You are asking whether it is acceptable to mark the container in which the item will be repackaged in the U.S. with the country of origin in lieu of marking the article itself. A marked sample container was submitted with your letter for review.

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.

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 carafes are not imported in their marked retail container, the Import Specialists at the port of entry should decide whether the subject articles are excepted from individual marking under 19 CFR 134.32(d). In this regard, section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized at the discretion of the port 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.

Under 19 CFR 134.26, certification must be made to Customs at the time of entry that the merchandise will be repackaged with the correct country of origin properly indicated.

Customs at the port of entry must determine that the product will be properly repackaged in a container that legibly, indelibly, permanently and conspicuously indicates the country of origin to the ultimate purchaser. If Customs at the port of entry is satisfied that the article will remain in its container until it reaches the ultimate purchaser and is satisfied that the ultimate purchaser can tell the country of origin of the product by viewing the container in which it is packaged, the individual article could be excepted from marking.

Information concerning this matter should be presented to the Import Specialists at the port of entry. They must determine whether the merchandise will reach the ultimate purchaser in the packaging so that marking of the packaging alone would be acceptable.

In any case, your proposed marking of “Glass made in Czech Republic – Product assembled in U.S.A.” is unacceptable (whether it appears on the article or the packaging) since the article itself is clearly made in the Czech Republic. It is not assembled in the U.S.A. Therefore, the product could simply be marked Czech Republic or Made in Czech Republic.

If you wish to mention the U.S. role in this product, a possible alternative marking would be “Glass Carafe made in Czech Republic; Handle, Top and Neckband added in the United States.” Information concerning this matter should be presented to the Import Specialists at the port of entry to verify the accuracy of any statement made in the marking.

In addition, questions regarding any references to the United States in marking should be referred to the Federal Trade Commission at 202-326-2996.

The sample package submitted is also improper because it depicts a picture of a carafe marked made in USA. Since this product is made in the Czech Republic, not the United States, it is improper for the box to depict a product marked made in USA.

Since the bottom of the sample box includes the New York address of the importer, the phrase “Made in the Czech Republic” must also appear near this address in lettering that is at least as large and conspicuous as the potentially confusing information.

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 Jacob Bunin at 646-733-3027.


Robert B. Swierupski

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