MAR 2-05 CO:R:C:V 732362 LR
William C. Byrd
Area District Director
Charleston, South Carolina 29413-0876
RE: Country of Origin Marking of Containers When Contents Are
Excepted from Marking
Dear Mr. Byrd:
This is in response to your memorandum dated April 4, 1989,
requesting internal advice concerning the country of origin
marking requirements of imported containers when their contents
are excepted from marking.
ISSUE:
In what circumstances are disposable containers required to
be marked to indicate the country of origin of the contents when
the contents are excepted from marking?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19
U.S.C. 1304), requires, subject to certain specified exceptions,
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 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 general exceptions to marking are set forth in 19
U.S.C. 1304(a)(3)(A) -(K) and in {134.32, Customs Regulations (19
CFR 134.32).
19 U.S.C. 1304(b) sets forth the marking requirements for
containers, when the contents are excepted from marking under 19
U.S.C. 1304(a)(3). In most cases, the container must be marked
to indicate the country of origin of the contents which are
excepted from marking.1/ A commonly used exception is
1/ If the container is reusable it would also have to be marked
to indicate its own country of origin. See { 134.23, Customs
Regulations.
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19 U.S.C. 1304(a)(3)(D) which applies if the marking of a
container of such article will reasonably indicate the origin of
such article. The only instances in which the marking of the
container is not necessary, is if the contents are excepted from
country of origin marking requirements under 19 U.S.C.
1304(a)(3)(F),(G) & (H). See also { 134.22(d)(1), Customs
Regulations, which excepts the container from marking if the
contents are excepted under { 134.32(f),(g) or (h), corresponding
to 19 U.S.C. 1304(a)(3)(F),(G) & (H), respectively. 2/ In view
of the fact that neither the article nor its container is
required to be marked with the country of origin under these
provisions, Customs has interpreted them narrowly.
19 U.S.C. 1304(a)(3)(F) provides an exception from marking
when such article is imported for use by the importer and not
intended for sale in its imported or any other form (emphasis
added). Examples of articles imported for use by the importer
include articles imported for showroom or for testing purposes,
HQ 709199, June 28, 1978; samples which will not be sold,
distributed or given away, but will be used by the importer for
the solicitation of orders, HQ 732082, March 14, 1989; and, in
the example you cite, rubber gloves imported by a company for use
by its employees. In each case, both the imported article and
its container are excepted from marking. However, if the company
or person that is using the imported article (i.e., the ultimate
purchaser) is not the importer, this exception is not applicable.
Under these circumstances, the imported articles may qualify for
an exception from marking under 19 U.S.C. 1304(a)(3)(D) provided
the marking of the containers will reasonably indicate the origin
of the articles. 3/
2/ {134.24(d), Customs Regulations (19 CFR 134.24(d)), provides
that when the contents are excepted from marking, the usual
disposable containers in use as such at the time of importation
shall not be required to be marked to show the country of their
own origin, but shall be marked to indicate the origin of their
contents regardless of the fact that the contents are excepted
from marking requirements. This provision must be read in
conjunction with 19 U.S.C. 1304(b) and 19 CFR 134.22(d)(1) which
specifically excepts the container from marking when the contents
are excepted under 19 U.S.C. 1304(a)(3)(F),(G) & (H) and 19 CFR
134.32(f)(g)&(h).
3/ 19 U.S.C. 1304(a)(3)(F) is also inapplicable if the importer,
as a result of further manufacturing operations, substantially
transforms the imported article. In such circumstances, the
importer is considered the ultimate purchaser and the imported
article is excepted from individual marking under 19 U.S.C.
1304(a)(3)(D), provided the outermost container is marked.
See { 134.35, Customs Regulations.
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19 U.S.C. 1304(a)(3)(G) provides an exception if the
imported article is 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 article and in such manner that any mark
contemplated by this section would necessarily be obliterated,
destroyed, or permanently concealed. {134.36(a), Customs
Regulations (19 CFR 134.36(a)), provides that the exception is
not applicable if there is a reasonable method of marking which
will not be obliterated, destroyed, or permanently concealed by
such processing. Although no country of origin marking would be
required either on the imported article or its container, Customs
has taken the position that the processed article is required to
be marked to indicate the country of origin to the ultimate
purchaser.
Finally, 19 U.S.C. 1304(a)(3)(H) provides for an exception
to marking if the ultimate purchaser, by reason of the character
of such article or by reason of the circumstances of its
importation, must necessarily know the country of origin of such
article even though it is not marked to indicate its origin
(emphasis added). It is not sufficient that someone advise the
ultimate purchaser of the country of origin. An instance where
an ultimate purchaser would necessarily know the country of
origin from the character of an article would be when the
merchandise is produced in one country only, for example, black
diamonds from Brazil. An instance where an ultimate purchaser
would necessarily know the country of origin of an article by
reason of the circumstances of its importation would be where the
ultimate purchaser ordered articles manufactured for his account
in a named country in circumstances in which the order could not
be filled with articles manufactured elsewhere. Customs must be
satisfied that under the terms of the sale, that the goods will
be made in the country named in the invoice (HQ 709661, January
15, 1979).
It should be noted that {134.36(b), Customs Regulations (19
CFR 134.36(b)), provides that an exception from marking shall not
apply to any article or retail container bearing any words,
letters, names, or symbols described in { 134.46 or { 134.47
which imply that an article was made or produced in a country
other than the actual country of origin. Accordingly, even
though the article and its container would normally be excepted
from marking in the circumstances outlined above, the exception
would not apply if the article and/or the retail container bears
a misleading marking.
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HOLDING:
Disposable containers of articles excepted from country of
origin marking under the provisions of 19 U.S.C. 1304 (a)(3)(F),
(G) & (H), are not required to be marked with the country origin
of the contents. Disposable containers of articles otherwise
excepted from marking are required to indicate the country of
origin of the contents.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch