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NY N011131

June 4, 2007

MAR-2 RR:E:NC:1:108


Mr. Brian Wolfrum
Trimble Navigation Limited
5475 Kellenburger Road
Dayton, OH 45424


Dear Mr. Wolfrum:

This is in response to your letter dated May 10, 2007, requesting a ruling on the proper marking of a CD-ROM. A marked sample was not submitted with your letter for review.

The subject merchandise is a CD-ROM that consists of a blank disk of polycarbonate plastic which is manufactured in Japan and then shipped to China where software is recorded onto the disk. It is noted that the intellectual property of this software is of US origin.

It is stated that the proper country of origin for the CD-ROM should be where the plastic forms the shape of each CD-ROM, which is Japan, and not where the data was recorded onto each CD-ROM, which is China. Further, it is stated that since there is no tariff shift, in accordance to 19 CFR 102.20, the recording of data onto this disk does not affect the country of origin.

Section 304 of the Tariff Act of 1930 (19 U.S.C. §1304), provides that, unless excepted, every article of foreign origin imported into the United States 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 United States the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. §1304 was that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. “The evident purposes is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302 (1940).

Part 134, Customs Regulations (19 C.F.R. Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. §1304. Section 134.1(b), Customs Regulations (19 C.F.R. §134.1(b)), defines “country of origin” 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 the marking laws and regulations. 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. United States v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98)(1940).

Based on prior Customs decisions, it has been determined that the recording of data onto the disk constitutes a substantial transformation, since the character of the disk is changed from one of a blank storage medium to one onto which a predetermined electronic pattern is encoded. Moreover, the use of this disk has been changed from that of an unreadable, therefore meaningless, article of software, to that of an encoded instruction guide, which enables a computer to perform various commands.

In this regard, the country of origin for the subject CD-ROM has consequently been found to be China in noting that the application of 19 CFR 102.20 is not relevant since the marking issue is not governed by the NAFTA marking rules.

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 Lisa Cariello at 646-733-3014.


Robert B. Swierupski

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