MAR-2-05 RR:TC:SM 560266 MLR
Lawrence R. Pilon, Esq.
Hodes & Pilon
33 North Dearborn, Suite 2204
Chicago, IL 60602-3109
RE: Country of origin marking for surgical pack wrappers;
container; repacking; 19 CFR 134.26
Dear Mr. Pilon:
This is in reference to your letter of January 10,
1997, requesting a ruling on behalf of Medline Industries,
Inc. ("Medline"), concerning the country of origin marking
requirements for surgical pack wrappers and their
containers. A sample of a surgical pack wrapper was
submitted.
FACTS:
The article at issue is a surgical pack wrapper
(hereinafter "wrappers"). It is stated that Medline will
import the wrappers in bulk, repack them in containers, and
sell them exclusively to hospitals and surgical centers.
The wrappers are used by surgical and medical staff during
surgical procedures to protect against contamination from
airborne contaminants and bodily fluids. Medline wishes
only to mark the outside container in which the wrappers
are repacked.
ISSUE:
What are the country of origin marking requirements of
the wrappers at issue?
LAW AND ANALYSIS:
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 first question that must be resolved is who is the
ultimate purchaser of the imported wrappers. Section
134.1(d), Customs Regulations {19 CFR 134.1(d)}, defines an
ultimate purchaser as "generally the last person in the
U.S. who will receive the article in the form in which it
was imported." In C.S.D. 88-126 (August 11, 1988), Customs
determined that the ultimate purchaser of patient
identification bracelets, used on patients when they were
admitted to hospitals, was the hospital and not the
patient. Similarly, in this case, it is stated that the
wrappers will be sold exclusively to hospitals for use
during surgical procedures. Accordingly, we find that the
hospitals will be the ultimate purchasers of the wrappers.
The second question to be resolved is whether it is
sufficient to only mark the outside container in which the
wrappers are repackaged. Section 134.32(d), Customs
Regulations {19 CFR 134.32(d)}, excepts an article from
marking if its container will reasonably indicate the
origin of the article. In C.S.D. 89-56 (December 21,
1988), Customs considered surgical towels which were
washed, folded, and placed in individual packages after
importation. Customs determined that it was not necessary
to mark the individual surgical towels, but that it was
appropriate to only mark the package in which the towels
were packed with the country of origin of the towels.
Similarly, in this case, it will be acceptable to only mark
the outside container in which the wrappers are packaged
with their country of origin, provided the ultimate
purchaser (the hospitals) receives the wrappers in these
properly marked containers.
It is also stated that the wrappers are imported in
bulk and will be repacked after importation. If the
wrappers are imported in properly marked bulk containers,
19 CFR 134.26 will apply, as the certification requirements
specified in that section are applicable to articles marked
with their country of origin, or to those articles which
are imported in properly marked containers. The purpose of
19 CFR 134.26 is to ensure that the new container in which
the article is repacked contains the country of origin of
the article.
Section 134.26, Customs Regulations (19 CFR 134.26),
provides in pertinent part that:
If an imported article subject to these requirements is
intended to be repacked in retail containers ... after
its release from Customs custody, or if the port
director having custody of the article, has reason to
believe such article will be repacked after its
release, the importer shall certify to the port
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....
Therefore, this procedure may be used if the container in
which the wrappers are packed is properly marked with the
wrapper's country of origin. If the wrappers are not
imported in properly marked bulk containers and the
wrappers also are not individually marked, then the
procedures of 19 CFR 134.34(a) shall be used. Please note
that only 19 CFR 134.26(a) provides that the certification
statement may be submitted in blanket form to cover all
importations of a particular product for a given period.
Since a sample of the container in which the wrappers
will be repackaged was not submitted, we cannot comment
upon the acceptability of its marking. However, please
note that if the name of a locality other than the
wrapper's country of origin is on the container, the
requirements of 19 CFR 134.46 must be satisfied.
HOLDING:
Based on the facts presented, the wrappers may be
excepted from marking pursuant to 19 U.S.C. 1304(a)(3)(D)
and 19 CFR 134.32(d) and only the outer container in which
the wrappers are packed must be marked with the country of
origin of the wrappers, as the ultimate purchaser of the
wrappers is the hospital to which the wrappers are sold.
Furthermore, the wrappers may be repackaged after their
release from Customs custody if the requirements of 19 CFR
134.26 are satisfied, provided the wrappers are imported in
properly marked bulk containers. The requirements of 19
CFR 134.26 will be satisfied if the wrappers are imported
in properly marked containers, and Medline repackages the
wrappers in properly marked containers.
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 Customs
officer handling the transaction.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division