MAR-2-05 CO:R:C:V 734595 ER
Mr. Nick Nowick
Magic Novelty Co. Inc.
308 Dyckman Street, New York, NY 10034-5391
RE: Country of Origin Marking of Imported Imitation Jewelry; 19
U.S.C. 1304(a)(3)(G); 19 CFR 134.32(g); 19 CFR 134.34; 19 CFR
134.26
Dear Mr. Nowick:
This is in response to your letter dated April 3, 1992, in
which you request a ruling concerning the country of origin
marking requirements for certain imitation jewelry. Samples of
the imitation jewelry were submitted with the request.
FACTS:
You state that almost all the merchandise imported by you is
in an unfinished condition and is subjected to further
processing, including plating, stringing and attaching medallions
or charms. Presumably, the processing is generally performed by
your customers prior to the sale to the retail buyer or retail
establishment.
The imported merchandise consists of the following items:
metal beads (BM1905); stainless steel necklaces (ZNH4570); copper
coated steel bracelets (ZBH4203); copper coated chain
connectors/extenders (ZCN4523); and copper coated steel necklaces
(NH10277). Details regarding the manner in which the merchandise
is imported were not provided.
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), requires that 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 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. The purpose of the
marking statute is to inform the ultimate purchaser of the
country of origin so that he can decide whether or not to
purchase the goods.
Pursuant to 19 U.S.C. 1304(a)(3)(G) and 19 CFR 134.32(g),
one of the general exceptions from the marking requirements is
for articles to be processed in the U.S. by the importer or for
his account otherwise than for the purpose of concealing the
origin of such articles, and in such manner that any mark
contemplated by law would necessarily be obliterated, destroyed,
or permanently concealed. You assert that the jewelry qualifies
for such an exception by virtue of the further processing
performed on it after importation by your customers.
The imported merchandise is not entitled to such an
exception because the processing is not performed "by the
importer or for his account" as set is set forth in the statute.
Nonetheless, the imported articles may qualify for an exception
from individual country of origin marking pursuant to another
statutory provision or section of the regulations, as is set
forth below.
An article is excepted from marking under 19 U.S.C.
1304(a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR
134.32(d)), if the marking of a container of such article will
reasonably indicate the origin of such article. No details were
provided regarding the manner in which the merchandise is
imported, nor the identity of your customers, nor whether your
customers sell to retail customers or retail establishments.
Thus, for purposes of this ruling, we will assume that the
merchandise is imported in bulk and is repackaged for sale to
retail customers or retail establishments by your customers
subsequent to the operations performed to finish the jewelry.
Pursuant to section 134.34, Customs Regulations (19 CFR
134.34), an exception may be authorized under these circumstances
at the discretion of the district director under 19 CFR 134.32(d)
for imported articles which are to be repacked after release from
Customs custody under the following conditions: (1) The
containers in which the articles are repacked will indicate the
origin of the articles to an ultimate purchaser in the U.S.; (2)
The importer arranges for supervision of the marking of the
containers by Customs officers at the importer's expense or
secures such verification, as may be necessary by certification
and the submission of a sample or otherwise, of the marking prior
to the liquidation of the entry.
In HQ 734420 (March 31, 1992), a case involving the country
of origin marking requirements for earrings that are imported in
bulk and repacked in individual packages for sale, Customs noted
the following:
In HQ 732808, December 12, 1989, we indicated
that the discretion of the district director
under 19 CFR 134.34 is quite broad. He may
determine whether the marking of the repacked
containers will comply with 19 U.S.C. 1304.
He may determine whether direct supervision,
certification, verification, or review of a
sample is necessary to accomplish the
purposes of 19 U.S.C. 1304 and to extend the
60-day liquidation period.
In that same ruling, we also indicated that
the district director would be acting within
the scope of his discretion in determining
that the 19 U.S.C. 1304(a)(3)(D) exception
may be approved for all entries made over an
extended or indefinite period [of] time,
rather than on an entry-by-entry basis. An
important element in the exercise of the
district director's discretion is his
assessment of whether the company requesting
the exception can be relied upon to carry
through on its undertakings. Another factor
to be considered is whether the district has
adequate resources to provide the continuing
supervision necessary to ensure proper
country of origin marking after importation.
Additional factors that the district director
could consider are the importer's history of
violations and record in complying with
Customs procedures and regulations, whether
the importer is doing the repacking himself,
or having another party do the repacking, and
whether the repacking is done on the
importer's premises within the Customs
district in which the merchandise was
imported. Where the district director
determines that the importer may not utilize
the certification procedure of 19 CFR 134.34,
he/she must [be] able to articulate a
specific reason for this decision.
Since the operations to be performed on the imported
merchandise (such as plating and minor assembly) do not amount to
a substantial transformation, the ultimate purchaser of the
merchandise is the retail buyer. (See C.S.D. 91-7 (HQ 732159)
dated September 7, 1990, where Customs found that jewelry which
is subjected to gold or silver electroplating after importation
has not been substantially transformed.) Because these items are
sold to an interim party before they are sold to the ultimate
purchaser, the district director may require certification from
you or the subsequent purchaser who finishes and repacks the
merchandise, to the effect that the imported merchandise will be
repacked in such a manner so as to inform the ultimate purchaser,
the retail purchaser, of the country of origin of the imported
merchandise.
HOLDING:
So long as the district director is satisfied that the
imported imitation jewelry will be repacked into packaging that
is properly marked with country of origin and that the ultimate
purchasers will receive the merchandise in these properly marked
packages, the merchandise may be excepted from individual country
of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D), 19 CFR
134.32(d) and 19 CFR 134.34.
Sincerely,
John Durant, Director