OT:RR:CTF:FTM H318487 TSM

Aarash Darroodi
Fender Musical Instruments Corporation
17600 N. Perimeter Drive, Suite 100
Scottsdale, AZ 85255

RE: Country of Origin Marking of Amplifiers

Dear Aarash Darroodi:

This is in response to your letter, dated April 23, 2021, in which you requested a ruling, on behalf of Fender Musical Instruments Corporation, concerning the eligibility of certain amplifiers, specifically their outer cartons, for an exception from country of origin marking requirements pursuant to 19 U.S.C. 1304 (a)(3)(B) and 19 C.F.R. 134.32(b). Your request was forwarded to this office from the National Commodity Specialist Division for review.

FACTS:

The merchandise at issue is amplifiers, typically used with guitars and/or microphones. In NY N318515, CBP determined that the country of origin of the amplifiers at issue is Thailand. The amplifiers, marked with their country of origin, will be imported and sold to the ultimate purchaser in the United States in sealed cartons. [1] 1 You request that the sealed cartons containing the marked amplifiers be excepted from the marking requirements pursuant to the 19 U.S.C. 1304 (a)(3)(B) and 19 C.F.R. 134.32(b). You claim that it would be a hardship to mark the cartons with Thailand as the country of origin, because such country of origin marking would be contrary to the determination by Chinese Customs. [2] In support of your request, you further argue that NY N318515 "clearly indicates that either the article ... [must be] marked with a country-of-origin stamp or its' container." You claim that this marking requirement would be satisfied because the amplifiers, contained inside unmarked cartons, would be marked with their country of origin.

ISSUE:

Whether the outer cartons for the amplifiers under consideration qualify for a marking exception pursuant to 19 U.S.C. 1304 (a)(3)(B) and 19 C.F.R. 134.32(b).

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 (or its container) 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. An article may be exempt from the country of origin marking requirements of 19 U.S.C. 1304 if it falls within one of the exceptions to marking. The applicable portion of 19 U.S.C. 1304 states as follows:

(a) Marking of Articles

Except as hereinafter provided, every article of foreign origin (or its container, as provided in subsection (b) hereof) 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 manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article. The Secretary of the Treasury may by regulations -

* * *

(3) Authorize the exception of any article from the requirements of marking if -

(B) Such article cannot be marked prior to shipment to the United States without injury;

* * *

(b) Marking of Containers

Whenever an article is excepted under subdivision (3) of subsection (a) of this section from the requirements of marking, the immediate container, if any, of such article, or such other container or containers of such article as may be prescribed by the Secretary of the Treasury, shall be marked in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of such article, subject to all provisions of this section, including the same exceptions as are applicable to articles under subdivision (3) of subsection (a). * * *

Title 19 C.F.R. Part 134 implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 C.F.R. 134.41(b)), mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the United States who will receive the article in the form in which it was imported.

19 C.F.R. 134.32 implementing the general exceptions to marking requirements, states in relevant part the following:

The articles described or meeting the specified conditions set forth below are excepted from marking requirements:

* * *

(b) Articles that cannot be marked prior to shipment to the United States without injury;

* * *

The rules concerning marking of containers or holders not designed for or capable of reuse are provided under 19 C.F.R. 134.24, which states in relevant part the following:

* * *

(d) Imported full -

* * *

(2) Sealed containers or holders. Disposable containers or holders of imported merchandise, which are sold without normally being opened by the ultimate purchaser (e.g., individually wrapped soap bars or tennis balls in a vacuum sealed can), shall be marked to indicate the country of origin of their contents.

(3) Unsealed containers. Unsealed disposable containers of imported merchandise normally unopened by the ultimate purchaser, may be excepted from marking if the article is so marked that the country of origin is clearly visible without unpacking the container. However, if the container is normally opened by the ultimate purchaser prior to purchase, only the article need be marked.

* * *

In your letter, dated April 23, 2021, you argue that the cartons for the amplifiers under consideration qualify for a marking exception pursuant to 19 U.S.C. 1304 (a)(3)(B) and 19 C.F.R. 134.32(b). In this regard, we note that the referenced statutory and regulatory provisions authorize the exception of any imported article of foreign manufacture from the requirements of marking, when such article cannot be marked prior to shipment to the United States without injury. The provisions at issue do not authorize an exception from marking for an article's container. In this instance, the articles to be imported are the amplifiers themselves. Based on the information that you provided, the amplifiers should be marked with their country of origin and are not excepted from the marking requirements. Accordingly, the marking exception of 19 U.S.C. 1304 (a)(3)(B) and 19 C.F.R. 134.32(b) is not applicable in this instance.

In your letter, you claim that marking the amplifiers with their country of origin while leaving the outer cartons unmarked would satisfy the relevant marking requirements because "NY N318515 'clearly indicates that either the article ... [must be] marked with a country of origin stamp or its' container.' " We disagree. In this regard, we note that 19 U.S.C. 1304 (b) provides that whenever an article is excepted from the requirements of marking, the immediate container, if any, of such article, shall be marked in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of such article. [3] Therefore, we note that with regard to marking of containers, the referenced NY N318515 language applies in instances when the articles inside those containers are excepted from the marking requirements pursuant to 19 U.S.C. 1304 (a)(3). In such instances, the containers holding unmarked articles must be marked with the articles' country of origin pursuant to 19 U.S.C. 1304 (b).

The rules concerning marking of containers or holders not designed for or capable of reuse are provided under 19 C.F.R. 134.24. Specifically, with regard to sealed disposable containers or holders of imported merchandise, which are sold without normally being opened by the ultimate purchaser, 19 C.F.R. 134.24(d)(2) provides that such containers or holders shall be marked to indicate the country of origin of their contents. Moreover, with regard to unsealed disposable containers or holders, 19 C.F.R. 134.24(d)(3) provides that such containers may be excepted from marking in the following instances: when the country of origin of the marked article contained inside is clearly visible without unpacking the container and when the container is normally opened by the ultimate purchaser prior to purchase.

Upon review of the information that you provided, we conclude that the amplifiers at issue would reach the ultimate purchaser in sealed containers without normally being opened prior to purchase. Therefore, the sealed containers must be marked with the country of origin of the amplifiers pursuant to 19 C.F.R. 134.24(d)(2). We note that you have also submitted additional information showing that the amplifiers at issue will be sold in retail stores, online, and at trade shows, and that in many instances the ultimate purchaser will have an opportunity to see the country of origin markings featured on the amplifiers prior to purchase. However, we find that the marking exception of 19 C.F.R. 134.24(d)(3) is not applicable in this instance. While the referenced exception applies to unsealed containers, the record shows that the amplifiers at issue would reach the ultimate consumer in sealed containers.

Based on the foregoing, we find that the outer cartons for the amplifiers under consideration do not qualify for a marking exception pursuant to 19 U.S.C. 1304 (a)(3)(B) and 19 C.F.R. 134.32(b). The outer cartons shall be marked with the country of origin of the amplifiers pursuant to 19 C.F.R. 134.24(d)(2).

HOLDING:

The outer cartons for the amplifiers under consideration do not qualify for a marking exception pursuant to 19 U.S.C. 1304 (a)(3)(B) and 19 C.F.R. 134.32(b). The outer cartons shall be marked with the country of origin of the amplifiers pursuant to 19 C.F.R. 134.24(d)(2).

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 CBP officer handling the transaction.

Sincerely,

Yuliya A. Gulis, Chief
Food, Textiles and Marking Branch

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[1] You provided additional information concerning the methods to be employed to sell the amplifiers upon their importation in sealed boxes, which would include the following: retail stores, online retailers, and trade shows. You claim that in the retail store and trade show sales environment the ultimate purchaser would be able to look at, touch, and inspect the amplifiers, which would also give them the opportunity to see the country of origin markings featured on the amplifiers. You also stated that for online purchases, online pictures with a magnifying feature would be available for the ultimate purchaser's viewing prior to making a purchase.
[2] You stated that, based on the fact that the final assembly process takes place in China, Chinese Customs determined that the country of origin of the amplifiers at issue is China.

[3] We note that 19 C.F.R. 134.22 (a) also provides in relevant part that when an article is excepted from the marking requirements, the outermost container in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of origin of the article.