MAR-2-05 RR:CR:SM 560900 MLR
Ned H. Marshak, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004
RE: Country of origin marking for camera; container
marking; 19 CFR 134.32(d); 19 CFR 134.26
Dear Mr. Marshak:
This is in reference to your letter of March 17, 1998,
requesting a ruling on behalf of Fuji Photo Film U.S.A.,
Inc., concerning the country of origin marking requirements
applicable to certain cameras imported from Indonesia in
their retail packages. A sample was submitted with your
request.
FACTS:
The sample submitted is Fuji's Photo Film's Endeavor
300 Zoom camera, packaged in a retail container. It is
stated that the camera will always be imported and sold to
consumers in the retail package as this retail package is
specially designed and constructed to hold one camera, a
roll of film, and a strap, and is printed with the bar code
for the camera, as well as camera specifications. The
retail package also contains a warranty card and an
instruction booklet. While the sample camera itself is
marked "Fuji Photo Film Co., Ltd. Tokyo, Japan, Made in
Indonesia," you propose to only mark the retail package and
not the camera itself and you confirmed in a telephone
conversation on April 15, 1998, that all references to
"Tokyo Japan and Made in Indonesia" will be removed from the
camera.
It is stated that the retail package will be securely
closed at the time of entry and when it is sold to the
consumer, but it will not be sealed. Fuji plans to import
the cameras and resell them to retailers. Fuji claims that
the retailers, and where applicable, their customers, will
always sell the cameras in the properly marked retail
packages. One of the side panels contains the following:
"END 300Z FILM EX US" and "Designed by Fuji Photo Film Co.,
Ltd. Tokyo Japan. Made in Indonesia." The inside of the
retail package contains a box of film marked "Made in Japan
by Fuji Photo Film Co., Ltd., Tokyo 106."
ISSUE:
Whether the cameras themselves may be excepted from
individual country of origin marking pursuant to 19 CFR
134.32(d).
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.
As provided in 19 CFR 134.1(d) the ultimate purchaser
is generally the last person in the U.S. who will receive
the article in the form in which it was imported. In this
case, the ultimate purchaser will be the consumer of the
camera at retail.
It is stated that the cameras will be imported and
remain in the retail package from Indonesia. Pursuant to 19
U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), an exception from
individual marking is applicable where the marking of the
container of the article will reasonably indicate the origin
of the article. This exception is normally applied in cases
where the article is imported in a properly marked container
and Customs officials at the port of entry are satisfied
that the ultimate purchaser will receive it in the original
unopened marked container. Relevant factors regarding
whether an article is likely to remain in its original
container include the chain of distribution, the type of
container, and the nature of the article.
As support for your position that the cameras
themselves do not have to be individually marked,
Headquarters Ruling Letter (HRL) HRL 559997 dated December
18, 1996, is cited where Customs considered the marking of
custom lapel pins, hand crafted in either soft or hard
enamel, some of which were used as recognition awards and
give-aways by major corporations or licensed with major
universities and sold in the marketplace. The pins were
individually wrapped in clear bags and then packaged in
larger bags containing 25 pins. On the outside of each
individual bag, a sticker was affixed with the marking "Made
in Taiwan". Customs found that the lapel pins did not have
to be individually marked, since the individual packaging of
each pin tended to show that the pins were designed to be
distributed in this fashion and would remain in their marked
plastic bags as the pins were small and could get lost or
tarnished were they to be removed prior to receipt by the
ultimate purchaser.
HRL 734157 dated July 15, 1991, is also cited, where
Customs considered tights packaged in clear plastic
containers which were sealed with an adhesive strip and
marked with the country of origin "France" by affixing a
paper label to each container. Each container was also
imprinted with the word "Paris" directly below on the middle
front panel. Although the plastic containers were not
permanently sealed, Customs found that since they contained
all the information about the product (e.g. material
composition, color, size and style), it was clear the
product was designed to be sold to the ultimate purchaser in
the plastic container.
In this case, it is claimed that it is highly unlikely
that the cameras will be removed from the retail packaging
in which they are imported prior to sale to the ultimate
purchaser since the packages contain important information
about the cameras, protect the cameras from damage, contain
operating instructions and warranty cards, and consumers
will not want to buy the camera without the assurance that
the camera is genuine and undamaged. We agree. While the
camera most likely will not be displayed at retail in the
packaging, we agree that the ultimate purchaser will receive
the camera in its retail packaging prior to or at the time
of purchase. Therefore, we find that an exception from
individual marking may be granted as the retail packaging
will reasonably
indicate the origin of the camera.
However, since Fuji's customers may resell the cameras
to their customers, and given the sensitive nature of
cameras, the certification requirements of 19 CFR 134.26
must be followed. Section 134.26(a), Customs Regulations
{19 CFR 134.26(a)}, provides in pertinent part that:
If an imported article subject to these requirements is
intended to be repacked in retail containers (e.g.
blister packs) after its release from Customs custody,
or if the port director having custody of the article,
has reason to believe that 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, that any repacking of the
article must conform to these requirements.
Accordingly, with regard to the imported cameras, we
find that if they are imported in marked containers and the
repacking certification set forth at 19 CFR 134.26(a) is
filed with Customs at the port of entry, the cameras
themselves may be excepted from marking at the time of
importation pursuant to 19 CFR 134.32(d).
With regard to the marking on the retail packaging,
"Designed by Fuji Photo Film Co., Ltd, Tokyo Japan", we find
that the requirements of section 134.46 have been satisfied,
which provides that:
In any case 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
location 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 appear 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 of the article, 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.
While T.D. 97-72 (62 FR 44211, August 20, 1997), amended
section 134.46, to trigger the special marking requirements
only when a marking on an imported article or its container
is capable of being misleading or deceiving, in response to
a comment, Customs specifically stated that a reference such
as "Designed by" would be misleading to the ultimate
purchaser and would require country of origin marking in
accordance with section 134.46. However, as the country of
origin marking "Made in Indonesia" is in the same size
lettering and right below the reference to "Tokyo Japan" on
the packaging, we find that the requirements of 19 CFR
134.46 have been satisfied. With regard to "END 300Z FILM
EX US", we do not find that section 134.46 is triggered, as
we find that the reference "US" in this context would not
mislead the ultimate purchaser to believe that the camera or
film is made in the U.S. Furthermore, while you have
confirmed that the marking on the camera itself "Fuji Photo
Film Co., Ltd. Tokyo, Japan, Made in Indonesia" would be
removed, we find that if the camera is marked with the
phrase "Fuji Photo Film Co., Ltd. Tokyo, Japan" the
requirements of section 134.46 would have to be satisfied as
this marking may mislead or deceive the ultimate purchaser
regarding the actual country of origin. See also New York
Ruling Letter (NYRL) A80244 dated April 15, 1996, and NYRL
A84523 dated July 1, 1996.
We also note that the country of origin of the film is
Japan, and as you state, the film will be enclosed as part
of the retail packaging of the camera. We find that marking
the box of the film alone without marking the outside retail
packaging of the camera is sufficient, provided the retail
packaging is not sealed, as it is likely that a consumer
will open and examine the contents of the retail packaging
to assure that the camera is in good condition.
HOLDING:
Based on the facts and sample presented, we find that
an exception from individual marking of the camera may be
granted as the retail packaging will reasonably indicate the
origin of the camera, and provided the Customs officials at
the time and port of entry are satisfied that the ultimate
purchaser will receive it in the original unopened marked
container. However, given that Fuji sells the cameras to
customers who in turn may resell the cameras, the
certification requirements of 19 CFR 134.26 will be
applicable. Additionally, we find that the requirements of
19 CFR 134.46 are triggered by the reference "Designed by
... Toyko Japan", but that they are satisfied on the retail
packaging as the marking "Made in Indonesia" is in the same
size lettering and in close proximity to such words.
Marking the box of film alone as to its own country of
origin without making reference to such on the outside
retail packaging is sufficient as it is likely that a
consumer will open and examine the contents of the retail
packaging to assure that the camera is in good condition.
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
Commercial Rulings Division