Mr. Hans Georg Madsen
RE: COUNTRY OF ORIGIN MARKING OF IMPORTED HEARING AIDS
Dear Mr. Madsen:
This is in response to your letter dated June 11, 2018 requesting a ruling on whether it is acceptable to import hearing aids in the unmarked blister packs shipped in bulk in transport containers and then repackage the hearing aids in the U.S. with the country of origin. A marked sample was not submitted with your letter for review.
Prior to importation, the hearing aids are packed into blister packs, which are then shipped in bulk in transport containers. After entering the United States, the hearing aids will be packed in the final retail packaging for the customer. This includes the labeling, which will contain the "Made in Denmark" information. You did not provide a detailed description or explanation of the transport containers. For purposes of this ruling, we assume the transport containers are designed for or capable of reuse.
You state that it is not practical to mark the blister pack with the country of origin. You believe the procedures described above are in accordance with the Tariff Act, since the country of origin is readily available both at the time the goods enter the United States and for any customer in the supply chain.
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. Congressional intent in enacting 19 U.S.C. § 1304 was “that the ultimate purchaser should be able to know by an inspection of 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.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940).
Part 134, Customs and Border Protection (“CBP”) Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), CBP Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.
In section 134.1(k), CBP Regulations (19 C.F.R. 134.1(k)), “Conspicuous” means capable of being easily seen with normal handling of the article or container.
With regard to the permanency of a marking, section 134.41(a), CBP Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, CBP Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
Section 134.1(b), CBP Regulations (19 CFR 134.1(b)), defines “country of origin” as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. Section 134.1(d), CBP Regulations (19 CFR 134.1(d)). defines the “ultimate purchaser” as generally the last person in the U.S. who will receive the article in the form in which it was imported.
An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), CBP regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article.
Section 134.22, CBP regulations (19 CFR 134.22), provide general rules for marking of containers or holders. Section 134.22 (a), CBP regulations (19 CFR 134.22(a)), states:
[w]hen an article is excepted from the marking requirements by subpart D of this part, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of origin of the article whether or not the article is marked to indicate its country of origin.
Section 134.23, CBP regulations (19 CFR 134.23), provides that containers or holders designed for or capable of reuse after the contents have been consumed, whether imported full or empty, must be individually marked to indicate the country of their own origin with a marking such as, “Container Made in (name of country).” Examples of the containers or holders contemplated are heavy duty steel drums, tanks, and other similar shipping, storage, transportation containers or holders capable of reuse. These containers or holders are subject to the treatment specified in General Rule of Interpretation 5(b), Harmonized Tariff Schedule of the United States (19 U.S.C. 1202).
Section 134.22(b), CBP regulations (19 CFR 134.22(b)), provides generally that:
[c]ontainers or holders for imported merchandise which are subject to treatment as imported articles under the Harmonized Tariff Schedule of the United States (19 U.S.C.1202), shall be marked to indicate clearly the country of their own origin in addition to any marking which may be required to show the country of origin of their contents.
Section 134.26 of the CBP Regulations (19 CFR 134.26), which applies to articles that are repacked or manipulated after importation, provides the following:
(a) Certification requirements. If an article subject to these requirements is intended to be repacked in retail containers (e.g., blister packs) after its release from CBP custody, or if the Center director having custody of the article, has reason to believe such article will be repacked after its release, the importer shall certify to the Center 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, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements.
(d) Notice to subsequent purchaser or repacker. If the article is sold or transferred to a subsequent purchaser or repacker the following notice shall be given to the purchaser or repacker:
Notice to Subsequent Purchaser or Repacker
These articles are imported. The requirements of 19 U.S.C. 1304 and 19 CFR part 134 provide that the articles in their containers must 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 an ultimate purchaser in the United States, the English name of the country of origin of the article.
It is important to note that the procedures set forth at 19 CFR §134.26 apply only to articles, which are legally marked at the time of importation. If the articles are not legally marked at the time of importation, the presentation to CBP of the certification and notice to subsequent purchasers or repackers specified in 19 CFR §134.26 will not serve to satisfy the importer’s obligations under 19 U.S.C. §1304 and Part 134 of the CBP Regulations. See HQ 562141, dated November 26, 2001. In this case, if the transport containers of the imported hearing aids are correctly marked with the country of origin of the articles contained within and the country of their own origin, the certification procedures of 19 CFR §134.26 may be utilized, provided that the containers in which the re-packaged hearing aids in the blister packs reach the ultimate purchaser will be marked in accordance with the requirements of 19 U.S.C. §1304 and 19 CFR Part 134.
The certification may be submitted in blanket form to cover all importations of a particular product for a given period, but the certification must be filed at each port where the articles are entered. As 19 CFR §134.26 indicates that the certificate of marking may cover all importations of a particular product, the importer must identify that product, whether by name or by part number.
Since the hearing aids are not imported in their marked retail containers, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the Center director to decide. In this regard, section 134.34, CBP Regulations (19 CFR 134.34), provides that an exception may be authorized at the discretion of the Center director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from CBP 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 CBP 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 this case, assuming that the Center director is satisfied that the imported hearing aids will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the Center director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported hearing aids will not be required.
This ruling is being issued under the provisions of Part 177 of the CBP Regulations (19 CFR Part 177).
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 Fei Chen at firstname.lastname@example.org.
Steven A. Mack
National Commodity Specialist Division