MAR-2-05 R:C:S 559253 MLR
Ms. Donna Williams
VDO Yazaki Corp.
188 Brooke Road
P.O. Box 2897
Winchester, VA 22604
RE: Country of origin marking for tachometer; housing;
container;
Dear Ms. Williams:
This is in reference to your letter of June 5, 1995,
requesting a ruling concerning the country of origin
marking requirements for a tachometer imported from
Germany. A sample was submitted with your request.
FACTS:
The article at issue is a tachometer which VDO Yazaki
("VDO") imports into the U.S. from Germany. The sample of
the tachometer submitted contains the marking "Made in
Germany" molded into the bottom of the tachometer's
housing and a label with the marking "Swiss Made" pasted
on the side of the tachometer's housing. It is stated
that the housing of the tachometer is made in Germany,
whereas the tachometer is made in Switzerland. The Port
of Baltimore allowed the carton in which the ultimate
purchaser receives the tachometer to be labeled "Housing
German Made, Tach Swiss Made." However, the port also
advised that in the future, the "Made in Germany"
reference on the bottom of the tachometer housing should
be removed, or that the country of origin label should be
placed on the part and not on the container. You wish to
continue to mark the container "Housing German Made, Tach
Swiss Made" until the Spring of 1996 when this tachometer
will be phased out and replaced. In addition, you state
that VDO does not open or repack these parts, and they are
sold in the carton in which they are shipped. Therefore,
you state that it is more efficient to place this label on
the container rather than on the tachometer itself.
ISSUE:
Whether it is appropriate to mark the container in
which the ultimate purchaser receives the tachometer
"Housing German Made, Tach Swiss Made."
LAW AND ANALYSIS:
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 134.1(d), Customs Regulations {19 CFR
134.1(d)}, 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. Section 134.1(b),
Customs Regulations (19 CFR 134.1(b)), defines "country of
origin" as the country of manufacture, production or
growth of any article of foreign origin entering the U.S.
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. A
substantial transformation occurs when articles lose their
identity and become new articles having a new name,
character or use. United States v. Gibson-Thomsen Co., 27
C.C.P.A. 267 at 270 (1940); National Juice Products
Association v. United States, 628 F. Supp. 978 (CIT 1986).
In Headquarters Ruling Letter (HRL) 734097, November
25, 1991, Customs ruled that imported terminal video
shells (computer terminal housings that contain video
electronics, but no logic boards), were substantially
transformed in the U.S. when they were processed by the
installation of certain key components, such as terminal
logic boards, to make them into dumb terminals for certain
computer systems. Customs indicated that the addition of
the logic boards created a new article. Also, in HRL
732170 dated January 5, 1990, Customs held that a
television chassis, containing a tuner, speaker, and
circuit board, was substantially transformed into a new
and different article of commerce, namely a TV receiver,
when a television picture tube, deflection yoke, electron
beam bender, degousser coil, and remote control unit were
assembled into the chassis. Accordingly, the manufacturer
of the TV receiver was the ultimate purchaser of the
imported chassis.
In this case, it is stated that the tachometer is
made in Switzerland and its housing is made in Germany.
Similar to the cases above, and based upon the sample
submitted, it is our opinion that the tachometer assembly
from Switzerland provides the essential character to the
article, and that the housing is substantially transformed
by the insertion of the tachometer. Accordingly, the
finished tachometer is only required to be marked to
indicate its Swiss origin.
However, the finished tachometer contains the marking
"Made in Germany" molded into the bottom of the tachometer
housing, and a label with the marking "Swiss made" pasted
on the side of the housing. Since this tachometer model
will be phased out and replaced in the Spring of 1996, and
since VDO does not repack the tachometers after they are
imported into the U.S., VDO proposes to mark the outside
container in which the ultimate purchaser receives the
tachometer "Housing German Made, Tach Swiss Made" instead
of modifying the mold in order to remove the "Made in
Germany" marking.
Customs considered a similar question in HRL 734095
dated February 18, 1992, regarding the country of origin
marking of T-Probes from Holland containing two different
country of origin markings: (1) a "Made in Holland"
marking appearing in large letters on a metal serial plate
affixed to the device, and (2) a "Made in USA" marking
molded into the plastic housing of the gastroscope
component of the T-Probe. The T-Probe was also imported
and sold in a carrying case. It was held that since there
were two country of origin markings on the T-Probe, it was
unclear and ambiguous what the true country of origin was.
Therefore, either the "Made in USA" marking had to be
obliterated or concealed in some fashion which would
provide the ultimate purchaser with a clear and
unambiguous indication as to the true country of origin of
the T-Probe, or alternatively, an additional explanation
could be placed on the serial plate to clarify that the
U.S. marking on the gastroscope component only referred to
the country of origin of the gastroscope.
Similarly, in this case, either the molded "Made in
Germany" reference on the bottom of the housing must be
removed or concealed, or an additional label may be placed
next to the "Swiss Made" label which clearly indicates
that the "Made in Germany" reference only refers to the
housing. We suggest that the label placed immediately
next to the "Swiss Made" label could read "Housing Made in
Germany." As to your suggestion of only marking the
container in which the ultimate purchaser receives the
tachometer "Housing German Made, Tach Swiss Made," it is
our opinion that this will not satisfy the statutory
requirements of 19 U.S.C. 1304 since the container is not
sealed and the ultimate purchaser may open the container
in order to examine the tachometer prior to purchase.
However, if the tachometer is imported in a sealed retail
container which will remain sealed, it will be sufficient
to mark only the container. However, in order to clearly
indicate that Switzerland is the country of origin of the
tachometer, we suggest that the container be marked
"Tachometer Made in Switzerland" [or "Swiss Made"];
"Housing from Germany."
HOLDING:
Based on the facts and sample submitted, the country
of origin of the tachometer is Switzerland. However,
because the tachometer contains the marking "Made in
Germany" molded into the bottom of the tachometer housing,
and a label with the marking "Swiss made" pasted on the
side of the housing, a clear and unambiguous indication of
the tachometer's country of origin is not provided as
required by 19 U.S.C. 1304. Therefore, either the "Made
in Germany" marking on the bottom of the tachometer's
housing must be removed, or a label may be placed
immediately next to the "Swiss Made" label which clearly
indicates that the "Made in Germany" reference only refers
to the housing. Only if the ultimate purchaser receives
the tachometer in a sealed container will a marking such
as "Tachometer Made in Switzerland" [or "Swiss Made"];
"Housing from Germany" on the container alone be
appropriate.
A copy of this ruling letter should be attached to
the entry documents filed at the time the goods are
entered. If the documents have been filed without a copy,
this ruling should be brought to the attention of the
Customs officer handling the transaction.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division