MAR-2-05 CO:R:C:V 734820 RC

Ms. Brigitte Scott Cooper
Pfaff American Sales Corp.
610 Winters Ave.
P.O. Box 566
Paramus, New Jersey 07653-0566

RE: Country of Origin Marking of Sewing Machine Parts; Repair Parts; Re-Sale Parts; 19 CFR 134.33; 19 CFR 134.34.

Dear Ms. Cooper:

This is in response to your letter of September 10, 1992, requesting a ruling on the country of origin marking requirements for foreign manufactured sewing machine replacement parts imported into the U.S. and sold to authorized dealers for repairing customer machines and foreign manufactured sewing supplies sold to consumers at retail. Additional information was submitted on November 5, 1993. We regret the delayed response.

FACTS:

Your company, Pfaff American Sales Corp. (Pfaff), imports into the U.S. repair and supply parts for Pfaff sewing machines. The sewing machines are made in Germany; the repair parts are manufactured in various countries. About 75% of the parts are machine repair parts. They are used by authorized Pfaff dealers to repair Pfaff machines and are identified below, (items 1-32). For purposes of this ruling, we assume that you provide the repair parts directly to the authorized dealers. You indicate that these repair parts imported by Pfaff are for the exclusive use of authorized Pfaff dealers who will install the replacement parts for customers. An additional 25% of the parts are sold at retail to customers as supplies, (items A-I). The submitted samples are as follows:

MACHINE REPAIR PARTS

1) 93-030 733-45 Knob 2) 93-035 111-05 Friction Washer 3) 93-035 382-45 Eccentric 4) 14-650 144-05 Ball 5) 13-070 061-45 Pin 6) 93-034 998-15 Finger Guard 7) 13-250 902-55 Rivet 8) 93-034 130-15 C-Clip Catch 9) 93-040 073-45 Bobbin Winder 10)93-035 169-05 Connecting Rod 11)93-036 137-91 Take up lever 12)93-030 658-41 Lever 13)93-034 133-05 Thread Retainer 14)93-036 176-91 Thread Hook 15)93-030 829-91 Helical Gear 16)93-035 304-91 Gear 17)93-035 190-51 Presser Bar Lever-Wineberry 18)93-030 180-05 Presser Bar 19)93-040 182-05 Stud 20)93-040 085-15 Stud 21)11-106 173-25 Screw 22)93-034 129-15 Needle Fastening Screw 23)11-106 107-45 Screw 24)11-039 223-15 Screw 25)11-039 979-15 Screw 26)93-035 575-15 Thread Guide 27)93-034 131-25 Thread Guide 28)93-040 589-35 Guide 29)93-030 983-05 Tension Spring 30)93-030 033-15 Spring 31)93-035 587-05 Spring 32)93-035 057-05 Spring

RETAIL-SALE SUPPLY PARTS

A) 93-009 033-21 Metal Bobbin B) 93-040 970-45 Clear new Bobbin C) 93-042 960-91 Snap on Darning Foot D) 93-042 950-91 5 Groove Snap on Carding Foot E) 98-999 650-00 Ruffler F) 49-020 524-81 Needles G) 21-00E 085-00 Supersheen Thread H) 10-000 415-00 Mez Alcazar Thread I) 10-000 298-00 Effektgarn (Thread)

Items 1-32 were submitted in resealable plastic bags. These parts are imported in bulk; and the bulk container is marked with the country of origin. All of these parts are relatively small, i.e. tiny springs, rods, tubes, nuts, bolts, washers, miscellaneous gadgets, etc. You repackage these items into smaller packages for your dealers. Items A-D were also submitted in resealable plastic bags. Items E-I were submitted in retail packaging. Item E is in a box marked "Made in Japan" on one of its sides. Item F is in a bag with a header card marked "MADE IN GERMANY" on both sides. Item G is in a box marked on the rear panel "Made in EC". Item H is in a box marked on the rear panel "Made in Germany". Item I is in a box marked on the rear panel "Made in West Germany".

In a letter dated November 5, 1993, your associate Roger Nuebel claims that the repair parts are so small that the cost of marking them would increase the cost from 500 to 600%. He also states that some of the parts are too small to mark at all while others could lose their ability to function properly with a country of origin label.

ISSUE:

What are the acceptable country of origin marking requirements for the imported replacement parts and supplies under 19 U.S.C. Part 134?

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 the English name of the country of origin of the article.

The "country of origin" for marking purposes is defined by section 134.1(b), Customs Regulations (19 CFR 134.1(b)), to mean the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Under section 134.1(d), Customs Regulations (19 CFR 134.1(d)), the "ultimate purchaser" generally is defined as the last person in the United States who will receive the article in the form in which it was imported. The marking must be conspicuous to the ultimate purchaser.

Although Customs normally does not consider the installer of replacement or repair parts to be the ultimate purchaser, in this case, based upon the particular facts presented, including the fact that the parts are small and difficult to mark, they are inexpensive and insignificant parts of a sewing machine, they are generally not visible after relevant repairs, and they are installed exclusively by Pfaff's authorized dealers, we find that the ultimate purchaser of items 1-32 is the authorized dealer who performs the repairs.

In this case, two marking exceptions appear to be applicable. Pursuant to section 134.33, Customs Regulations (19 CFR 134.33), certain imported articles are "J-Listed", that is, they are excepted from country of origin marking provided their containers are marked in a manner which is legible, conspicuous, and permanent. Here, applicable examples include: bolts, nuts, and washers; and screws. Any of the imported articles that are classified as such are excepted from individual marking under this provision. However, the outermost container in which such articles reach the ultimate purchaser is required to be marked. In addition, section 134.32(d), Customs Regulations (19 CFR 134.32(d)), provides that an article is excepted from marking if the marking of the article's container will reasonably indicate the origin of such article. Customs must be satisfied that in all reasonably foreseeable circumstances the article will reach the ultimate purchaser in a properly marked container.

Pursuant to 19 CFR 134.34, a marking exception under 19 CFR 134.32(d) may be authorized in the discretion of the district director for imported articles which are repacked after release from Customs custody under the following conditions:

(1) The containers in which the articles are repacked willindicate the origin of the articles to an ultimate purchaser in the United States.

(2) The importer arranges for supervision of the marking of the containers by Custom 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 HQ 735292 (September 21, 1993), Customs indicated that although the above provision sets forth the procedures to be followed when unmarked imported articles are to be repacked into marked containers after importation, these procedures are also appropriate in other circumstances, i.e. where articles cannot be marked prior to importation due to practical problems. Specifically, Customs recognized the practical problems with affixing tags with the country of origin marking to jewelry prior to importation and allowed the importer to affix the tags to the jewelry after its importation, subject to approval by the district director and the procedures set forth in 19 CFR 134.34.

Likewise, in HQ 735111 (October 15, 1993), recognizing the existence of practical problems with marking pens, (the nature of plastic molding, the cost of printing the pens both before and after importation, etc.) Customs allowed the importer to print both the country of origin marking and an advertising message on pens after their importation, subject to approval by the district director and the procedures set forth in 19 CFR 134.34.

Similarly, if Pfaff can demonstrate to Customs that the imported machine repair parts (items 1-32) will reach authorized Pfaff dealers in properly marked unopened containers, the procedures set forth in 19 CFR 134.34 could be utilized, subject to the approval of the district director. In such case, the containers in which the machine repair parts are imported and received by Pfaff must be properly marked to indicate their country of origin. Additionally, Pfaff must file a repacking certificate with the district director. This determination applies only to the circumstances as described here, where the authorized Pfaff dealer is the ultimate purchaser.

For the retail-sale supply parts (items A-I), the ultimate purchaser is the person who buys these items at retail. As such, the specific supply part or its retail container must be marked to indicate its country of origin; the actual markings on items E, F, and H comply with Part 134; the item G marking is not proper because "EC", "European Community", or even the new "EU" is not recognized as a country; the specific country of origin must be used; lastly, the item I marking is not proper because "West Germany" is no longer recognized as a country (the word "Germany" without distinction as to east or west must be used or "Federal Republic of Germany"). See O.C.O.D. 90-2, 21 Cust. Bull. 45/46, November 14, 1990.

If these parts are imported in their retail containers, and the district director at the port of entry is satisfied that the parts will reach the ultimate purchaser in such containers, the containers may be marked instead of the parts pursuant to 19 CFR 134.32(d).

HOLDING:

The imported bolts, nuts, washers, and screws are excepted from country of origin marking, as "J-listed", to the extent that their outermost container reaches the ultimate purchaser properly marked to indicate the origin of its contents. Subject to the provisos stated above, you may label the repair parts with the country of origin marking after importation subject to approval by the district director and the procedures set forth in 19 CFR 134.34. With respect to the items sold at retail A-I, the specific supply parts or their containers must be marked to indicate their country of origin; the actual markings on items E, F, and H comply with Part 134; the item G marking is not proper because "EC", "European Community", or the new "EU" is not recognized as a country; the specific country of origin must be used; lastly, the item I marking is not proper because "West Germany" is no longer recognized as a country ("Federal Republic of Germany" or the word "Germany" without distinction as to east or west must be used) to satisfy the requirements of Part 134.

Sincerely,

John Durant, Director