Country of origin marking on containers for surgical instruments;19 U.S.C. 1304(a)(3)(D); 19 CFR §134.34(d); 19 CFR §134.43(a).

HQ 559588 March 6, 1996 MAR-2-05 RR:TC:SM 559588 KR CATEGORY: Marking Anna De Ranieri AESCULAP 1000 Gateway Boulevard South San Francisco, CA 94080-7030 RE: Country of origin marking on containers for surgical instruments; 19 U.S.C. 1304(a)(3)(D); 19 CFR §134.34(d); 19 CFR §134.43(a). Dear Ms. De Ranieri: This is in reply to your letter dated October 31, 1995, requesting a ruling concerning the country of origin marking requirements applicable to imported surgical equipment. FACTS: Aesculap intends to import surgical instruments inside sealed bags. The sealed bags will be labeled with the country of origin of the surgical instruments. In your opinion, the surgical instrument itself need not be marked with its country of origin. ISSUES: May the container of surgical instruments be marked with the surgical instrument's country of origin rather than the instrument itself being marked pursuant to the special marking requirements of 19 CFR §134.43(a)? LAW AND ANALYSIS: Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that unless excepted, every article of foreign origin 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." United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.41(b), Customs 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 addition, §134.43(a), Customs Regulations (19 CFR §134.43(a)), places special marking requirements on certain products, including surgical instruments. 19 CFR §134.43(a), in pertinent part, reads: articles of a class or kind listed below shall be marked legibly and conspicuously by die stamping, cast-in-the-mold lettering, etching (acid or electrolytic), engraving, or by means of metal plates which bear the prescribed marking and which are securely attached to the article in a conspicuous place by welding, screws, or rivets: knives, forks, steels, cleavers, clippers, shears, scissors, safety razors, blades for safety razors, surgical instruments, dental instruments, scientific and laboratory instruments, pliers, pincers, nippers and hinged hand tools for holding and splicing wire, vacuum containers, and parts of the above articles. (emphasis added) However, Customs has determined that articles such as surgical instruments which are subject to the special marking requirements of 19 CFR §134.43(a), may be excepted therefrom if the marking of their containers will satisfy the requirements of 19 CFR §134.32(d). 19 CFR §134.32(d) provides a marking exception for "[a]rticles for which the marking of the containers will reasonably indicate the origin of the articles". In HQ 559388 (February 13, 1996), Customs specifically found that the container of surgical instruments may be marked with an adhesive label rather than having the instrument marked. See also HQ 735378 (February 10, 1995); HQ 734703 (December 2, 1992); HQ 733301 (August 8, 1990). Therefore, in the instant case, if the articles will be packaged in a properly marked container which will reach the ultimate purchaser unopened, the surgical instruments may be excepted from the special marking requirements of 19 CFR §134.43(a). HOLDING: Based on the information provided, if the medical equipment is packaged in a sealed plastic bag which will remain unopened until it is received by the ultimate purchaser, and the country of origin marking appearing on the sealed plastic bag satisfies Customs statutory and regulatory requirements, the medical instruments may be excepted from the special marking requirements of 19 CFR §134.43(a). A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is 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