MAR-2-05 RR:TC:SM 559872 KBR
David R. Stepp
White & Case
601 13th St., N.W.
Washington, D.C. 20005
RE: County of origin marking of smoke alarms entered for storage
and subsequent exportation to Australia; 19 CFR 134.32(j);
19 CFR 134.22(c); United States v. Friedlaender & Co., 27
C.C.P.A. 297, C.A.D. 104 (1940); HQ 732851 (January 26,
Dear Mr. Stepp:
This is in response to your letter dated May 24, 1996, on
behalf of BRK Brands, Inc., requesting a country of origin
marking ruling regarding smoke alarms entered into the United
States for temporary storage and subsequent exportation to
Australia. You included a photocopy of the blister pack
container for the smoke alarm for our review.
BRK Brands, Inc., imports the "Family Gard Smoke Alarm" from
Mexico into the U.S. You state that the smoke alarm is not sold
in the U.S. All the smoke alarms are meant for sale in
Australia. The smoke alarms are only stored in the U.S. and
broken down into smaller shipments for export to Australia to
fill purchase orders. The smoke alarm is packaged in a blister
pack. The front of the blister pack is marked with a box
containing a design and stating "Australian Standard" and also
inside the box is printed a license number and "Standards
Australia". You state that this symbol indicates that the smoke
alarm meets all of the Australian government product standards.
The back of the blister pack states "Made in Mexico" and
immediately below that reference is the Australian address of
"Family Gard" - - the Australian distributer of the smoke alarm.
Additionally, the blister pack bears no reference to any name and
address of an importer, distributor, or other person or company
in the United States.
You state that for previous shipments, Customs in El Paso
believed that the marking on the front of the blister pack
violated Customs regulations (19 CFR 134.46)and, as a result,
your client has been entering the smoke alarms into a foreign
trade zone and filing a transportation and exportation entry for
immediate exportation to Australia. For future shipments, you
wish to store the smoke alarms in an unbonded warehouse pending
exportation to Australia to fill future orders. You state that
BRK Brands, Inc., is willing to file a certificate stating that
the smoke alarms will not be sold at retail in the U.S.
Whether smoke alarms and their container originating in
Mexico and entered into the U.S. for storage and subsequent
exportation to Australia, are excepted from the country of origin
marking requirements of section 304 of the Tariff Act of 1930, as
amended (19 U.S.C. 1304).
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (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 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.
By enacting 19 U.S.C. 1304, Congress intended to ensure that the
ultimate purchaser would be able to know by inspecting the
marking on the imported goods the country of which the goods is
the product. The evident purpose 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.
Friedlaender & Co., 27 C.C.P.A. 297, 302 C.A.D. 104 (1940). Part
134, Customs Regulations (19 CFR 134), implements the country of
origin marking requirements and exceptions of 19 U.S.C. 1304.
The ultimate purchaser is defined in section 134.1(d),
Customs Regulations (19 CFR 134.1(d)), as the last person in the
U.S. to receive the article in the form in which it was imported.
Section 134.32, Customs Regulations (19 CFR 134.32) sets forth
some of the general exceptions to marking requirements. Section
134.32(d), Customs Regulations (19 CFR 134.32(d)) excepts from
individual marking requirements any article for which the marking
of the container will reasonably indicate to the ultimate
purchaser the origin of the article.
Section 134.46, Customs Regulations (19 CFR 134.46),
requires that when the name of any city or locality in the U.S.,
or the name of any foreign country or locality other than the
name of the country or locality in which the article was
manufactured or produced, appears on an imported article or its
container, 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.
Customs has ruled that in order to satisfy the close proximity
requirement, the country of origin marking must appear on the
same side(s) or surface(s) in which the name of the locality
other than the country of origin appears. HQ 708994 (April 24,
1978). The purpose of 19 CFR 134.46 is to prevent the
possibility of misleading or deceiving the ultimate purchaser as
to the origin of the imported article.
In HQ 732851 (January 26, 1990), Customs held that when an
imported product is to be exported, only the ultimate purchaser
in the U.S. of the imported article must be informed of the
country of origin of the product. Customs found that as long as
the importer certified to Customs that the articles would be
exported, and the importer receives the article in a properly
marked container, the individual articles need not be marked with
their country of origin. See also, HQ 734409 (September 25,
BRK Brands, Inc., currently enters the merchandise in
question with no intention of entering the smoke alarms into the
commerce of the United States. The sole purpose in entering the
goods from Mexico is to store and export them in smaller
shipments to Australia. Thus, in accordance with the exception
to marking provided for in part 134.32(d), Customs Regulations
(19 CFR 134.32(d)) , and HQ 732851, Customs finds that as long as
BRK Brands, Inc., receives the goods in bulk containers which are
properly marked with their country of origin, the goods are
excepted from the marking requirements of Section 304 of the
Tariff Act of 1930, as amended (19 U.S.C. 1304). We also find
that the reference to "Australian Standard" on the front of the
smoke alarms' blister pack does not trigger the special marking
requirements of 19 CFR 134.46 because that reference will not
mislead BRK Brands, Inc., as to the smoke alarms' origin. BRK
Brands, Inc., must file an appropriate certification with the
port director at the time of importation stating that the smoke
alarms are for export only and will not be sold in the U.S.
The Mexican smoke alarms' imported by BRK Brands, Inc., for
exportation to Australia, are excepted from the marking
requirements of Section 304 of the Tariff Act of 1930, as amended
(19 U.S.C. 1304), provided the outermost container in which the
smoke alarms are received by BRK Brands, Inc., are properly
marked with the smoke alarms' country of origin and BRK Brands,
Inc., files a certification with the port director that the smoke
alarms are for export only and will not be sold in the U.S.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is entered. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
John Durant, Director
Tariff Classification Appeals