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NY L81765

January 26, 2005

MAR-2 RR:NC:3:353 L81765


Mr. Sergio Irigoyen
Avent Inc.
9651 E. Southpoint Road
Tucson, AZ 85706


Dear Mr. Irigoyen:

This is in response to your letter dated December 22, 2004 requesting a ruling regarding merchandise imported without country of origin marking.

You intend to import disposable hospital gowns that are not sterilized into the United States. The gowns will be constructed of nonwoven spun bond or melt blown polyethylene fabric. The gowns will not be individually marked. The finished gowns are sealed in bulk in a large poly bag with an adhesive label that states “Made in Honduras” or “Made in Mexico. The poly bag or poly bags are placed inside a cardboard container. Opposing sides of the carton are marked with “Made in Honduras” or “Made in Mexico.” The goods will be repackaged in the United States. You state that you will notify subsequent purchasers or repackers that the merchandise is of foreign origin and that it must be marked to meet the requirements of 19 CFR 134.

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.

For unmarked articles, under 19 CFR 134.34, an exception from individual country of origin marking may be authorized in the discretion of the district director pursuant to 19 CFR 134.32(d), provided that the articles are repacked after importation under the supervision of the district director such that the marking on the new containers will indicate the articles' country of origin to their ultimate purchasers. Thus, although the requirements for exception from marking are not satisfied at importation, they are met after repacking under Customs supervision in the U.S. The district director retains broad discretion concerning whether the exception should be granted, and to specify the types of supervision required, which may include direct inspection, the submission of verifications or samples, or such other demonstration of compliance as the district director may require.

It is noted that the district director may, under the authority of 19 CFR 134.34, require an importer to provide certification that new containers will be marked in accordance with Part 134; such certification may contain the same language as that set forth at 19 CFR 134.25. In cases in which the importer is not the repacker, the district director may require such assurances as he deems necessary to assure that others will repack the articles in such a manner as to satisfy all the requirements of 19 U.S.C. 1304 and Part 134, Customs Regulations.

In general, an importer wishing to proceed under 19 CFR 134.34 should secure the approval of the district director in advance of importation. Absent such advance approval, Customs' usual procedure for articles imported without markings is to issue a Notice of Marking/Redelivery (CF 4647).

It should be noted that the sample packaging supplied to this office contains the phrase “Manufactured by Kimberly-Clark, Roswell, GA 30076 USA” in blue ink. On the same side is the phrase “Made in Honduras” or “Made in Mexico” in black ink with letters of comparable size. Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning. The purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of an article as to the actual origin of the imported good. In this case the US location and the country of origin marking are legible, permanent, in close proximity and of comparable size and are acceptable marking.

In this case, assuming that the port director is satisfied that the imported disposable hospital gowns 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 disposable hospital gowns at the time of importation 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 Kenneth Reidlinger at 646-733-3053.


Robert B. Swierupski

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