MAR-2-05 CO:R:C:V 734230 NL
District Director
U.S. Customs Service
P.O. Box 619050
1205 Royal Lane
Fort Worth, TX 75261
RE: Country of Origin Marking - Repacking Certifications; 19 CFR
134.26; T.D. 84-127; 19 CFR 134.25; 19 CFR 134.34; C.S.D.
91-16.
Dear Sir:
This is in response to the request of the Dallas/Fort Worth
Field National Import Specialist dated June 24, 1991, for
internal advice concerning the applicability of certain
regulations concerning country of origin marking which appear in
Part 134, Customs Regulations (19 CFR Part 134).
FACTS:
An importer, the Brinkmann Corporation, has filed with
Customs in Dallas/Fort Worth a certification reciting the
language which appears at section 134.26(a), Customs Regulations
(19 CFR 134.26(a)). The certification relates to articles
imported without country of origin marking. The Field National
Import Specialist believes that the 19 CFR 134.26(a)
certification procedures are applicable only to articles which
are legally marked at the time of importation, and describes the
instant situation as representative of a continuing problem for
Customs at Dallas/Fort Worth. Accordingly, he requests internal
advice concerning the applicability of 19 CFR 134.26(a).
ISSUE:
Whether, if goods are imported without proper country of
origin marking, the importer may be deemed to have satisfied the
marking requirements by following the procedures set forth at
section 134.26, Customs Regulations (19 CFR 134.26).
LAW AND ANALYSIS:
Section 134.26(a) provides that if an article subject to
country of origin marking is intended to be repacked after its
release from Customs custody, or the district director having
custody of the article has reason to believe that the article
will be repacked after its release, the importer shall certify to
the district 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..."
[emphasis added]; or 2) that if he does not repack the article
he will give notice to subsequent purchasers or repackers of
their obligations under section 19 U.S.C. 1304 and Part 134,
Customs Regulations.
As the emphasized language makes clear, the procedures set
forth at 19 CFR 134.26 apply only to articles which are legally
marked at the time of importation; i.e., marked so as to indicate
to the ultimate purchaser in the U.S. the English name of the
country of origin of the article. Thus, an importer may not
import unmarked or improperly marked goods and secure their
release by executing a certification pursuant to 19 CFR 134.26.
This provision does not apply to articles imported in bulk, not
individually marked, which are to be repackaged after importation
for retail sales to ultimate purchasers, unless they are
otherwise excepted from country of origin marking. If the
articles are not legally marked at the time of importation, the
presentation to Customs 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, Customs Regulations.
The decision which implemented 19 CFR 134.26, T.D. 84-127,
18 Cust. B. & Dec. 324 (1984), stated that the purpose of the
provision was to "minimize the practice of concealing country of
origin information on repacked marked articles". The authority
to require certification is based upon the principle that if
Customs has reason to believe that an article legally marked at
the time of importation will not reach its ultimate purchaser in
that condition, Customs may find that the marking of the article
at the time of importation does not satisfy the requirements of
19 U.S.C. 1304 and Part 134, Customs Regulations. See, U.S.
Wolfson Bros. Corp. v. United States, 52 CCPA 46, C.A.D. 856
(1965). There is nothing in either the regulation or T.D. 84-127
to indicate that Customs will deviate from its responsibility
under 19 U.S.C. 1304 to require that all articles of foreign
origin must, unless excepted, be marked at the time of
importation. As indicated above, Customs must be satisfied at
that time that the article will reach the ultimate purchaser in a
marked condition.
In sum, the certification procedures of 19 CFR 134.26 apply
only to articles which are legally marked at the time of
importation and which may be repacked in such a manner that the
marking appearing at the time of importation could be concealed
or obscured. The procedures generally are not applicable, for
example to unmarked articles imported in bulk which are to be
repacked for retail sale.
It is noted that a similar certification procedure is set
forth at section 134.25, Customs Regulations (19 CFR 134.25),
which may apply to articles imported in bulk without marking.
Such articles are those included in the "J-List" (19 CFR 134.33)
and articles incapable of being marked within the meaning of in
CFR 134.32(a). Under 19 CFR 134.25, the importer certifies that
after repacking in the U.S. the new containers will be marked in
accordance with the requirements of Part 134.
For unmarked articles not included within the scope of 19
CFR 134.25, a separate procedure under 19 CFR 134.34 is available
to importers. Under that provision, an exception from individual
country of origin marking may be authorized in the discretion of
the district director pursuant to 19 CFR 134.32(d), provided that
the articles are repacked after importation under the supervision
of the district director such that the marking on the new
containers will indicate the articles' country of origin to their
ultimate purchasers. Thus, although the requirements for
exception from marking are not satisfied at importation, they are
met after repacking under Customs supervision in the U.S. The
district director retains broad discretion concerning whether the
exception should be granted, and to specify the types of
supervision required, which may include direct inspection, the
submission of verifications or samples, or such other
demonstration of compliance as the district director may require.
It is noted that the district director may, under the authority
of 19 CFR 134.34, require an importer to provide certification
that new containers will be marked in accordance with Part 134;
such certification may contain the same language as that set
forth at 19 CFR 134.25. In cases in which the importer is not
the repacker, the district director may require such assurances
as he deems necessary to assure that others will repack the
articles in such a manner as to satisfy all the requirements of
19 U.S.C. 1304 and Part 134, Customs Regulations.
In general, an importer wishing to proceed under 19 CFR
134.34 should secure the approval of the district director in
advance of importation. Absent such advance approval, Customs'
usual procedure for articles imported without markings is to
issue a Notice of Marking/Redelivery (CF 4647). Accordingly, an
importer who plans to import articles in bulk for retail
packaging would be well-advised to proceed in one of two ways
with respect to country of origin marking: 1) make certain that
at importation all the articles are marked so as to indicate
their country of origin to the ultimate purchaser in the U.S., or
are otherwise eligible to be excepted from country of origin
marking; or 2) secure the approval of the district director to
repack and mark after importation pursuant to 19 CFR 134.34.
It is relevant in this regard to restate that Customs
disapproves of the routine presentation for entry of articles
which the importer without prior Customs approval plans to mark
after importation. As discussed in C.S.D. 91-16, 22 Cust. B. &
Dec. No. 32 (August 7, 1991), clarified in HQ 734291 (August 26,
1991), Customs officials are authorized to take a number of steps
against importers who habitually fail to comply with the country
of origin marking requirements, including, after appropriate
warnings, seizure under 19 U.S.C. 1595a(c). See Customs
Directive 4400-04 (May 11, 1987), and Telex dated December 8,
1988.
HOLDING:
The purpose of 19 CFR 134.26 is to assure that goods which
are legally marked at importation will not be repacked after
importation in such a manner as to conceal or obscure country of
origin markings. The certification procedures set forth therein
may not be used by an importer to satisfy his obligations under
19 U.S.C. 1304 and Part 134, Customs Regulations if the goods are
not legally marked or excepted from marking at the time of
importation.
Sincerely,
John Durant
Director, Commercial
Rulings Division