MAR-2 OT:RR:NC:N4:405
Karia Herrera
Compliance Manager
R.L. Jones Customhouse Brokers
8830 Siempre Viva Rd., Ste 100
San Diego, CA 92154
RE: COUNTRY OF ORIGIN MARKING OF IMPORTED BACK SUPPORT; ARTICLE 509
Dear Ms. Herrera:
This is in response to your letters, dated October 3 and November 21, 2012, requesting a ruling on the country of origin marking requirements for an imported article, which is claimed to be a good of a NAFTA country, that is later to be further processed in the U.S. into a finished article. A marked sample was not submitted with your letter for review.
In your October 3 letter, you stated that you believed that the imports would be excepted from the requirement for individual marking under 19 CFR 134.32 (f) and (o). However, in response to our October 23 letter to you, you then provided the information we requested to determine if they would be excepted from the requirement for individual marking under 19 CFR 134.35 (b).
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.
The country of origin marking requirements for a “good of a NAFTA country” are also determined in accordance with Annex 311 of the North American Free Trade Agreement (“NAFTA”), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.
Section 134.1(b) of the regulations, 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 this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).
Section 134.1(j) of the regulations, provides that the “NAFTA Marking Rules” are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a “good of a NAFTA country” as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a “good of a NAFTA country” may be marked with the name of the country of origin in English, French or Spanish.
In order to determine the country of origin marking requirements we must first apply the NAFTA Marking Rules in order to determine whether the imported Back Support (molded housing part 408770) “is a good of a NAFTA country”, prior to being further processed in the U.S.
Part 102 of the regulations, sets forth the “NAFTA Marking Rules” for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.
Applying the NAFTA rules of origin set forth in Part 102 of the regulations to the facts of this case, we find that, for marking purposes, the imported Back Support is a good of a NAFTA country prior to being further processed in the U.S.
The next issue is whether the U.S. processor is the ultimate purchaser within the meaning of section 134.35(b). Section 134.35(b) of the regulations, provides that
a good of a NAFTA country which is to be processed in the United States in a manner that would result in the good becoming a good of the United States under the NAFTA marking rules is excepted from marking. Unless the good is processed by the importer or on its behalf, the outermost container of the good shall be marked in accord with this part.
Based on the facts of this case, we find that the imported Back Support as a result of the further processing performed in the U.S. becomes an article of U.S. origin under Part 102 of the regulations.
Accordingly, the imported Back Supports, which are goods of a NAFTA country that become U.S. articles as a result of being further processed in the U.S., in the manner described above, are excepted from individual marking.
In this case, in addition to not having an individual marking of “Made in Mexico,” you further propose to imprint/mold Made in USA into the Back Supports. You state that this is intended for end users of the final product, a patient monitoring device, and that it is done this way since it is more convenient and permanent than adding that in the USA.
Your September 21 letter includes the statement, “United Plastics Group has analyzed the manufacturing operations performed in the USA by their client and has determined that the device for which part 408770 is a component of, qualifies as ‘Made in the USA’.”
We cannot confirm whether or not that analysis is correct since that the determination of whether an item can be marked “Made in USA” is made by the Federal Trade Commission. However, if the “Made in USA” is permitted on the final product, then the principle in Headquarters Ruling Letter 562109 KSG, dated February 7, 2002, which revoked HRL 561829 KSG, dated December 15, 2000, applies. It concerned imported, disposable tubes to be filled in the USA with USA contents.
Per that decision, “The marking ‘Made in U.S.A.’ would not mislead an ultimate purchaser of the disposable containers, who have ample knowledge of the country of origin of the disposable tubes and know that the phrase ‘Made in U.S.A.’ is on the disposable tubes to refer to the origin of the future contents of the tubes. Provided that the outer container of the disposable tube is marked as to the origin of the disposable tubes, the country of origin marking requirements of 19 U.S.C. 1304 will be satisfied.”
Although Section 134.35(b) of the regulations also excepts the marking of the outermost container as “Made in Mexico” or similar in certain circumstances, HRL 562109 pointed to the marking of the outer container as an element in determining that the “Made in U.S.A.” on the contents would not be misleading.
Therefore, if the “Made in USA” marking of the final product is permitted under the statutes interpreted by the Federal Trade Commission, it is acceptable marking that the Back Supports have an imprinted/molded “Made in USA”, provided that their outer containers are marked as to the origin of the Back Supports.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist J. Sheridan at (646) 733-3012.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division