THE COUNTRY OF ORIGIN MARKING OF UNGLAZED AND UNDECORATED CERAMIC BISQUE WARE FROM CHINA

N036487 September 9, 2008 MAR-2 OT:RR:NC:1:128 CATEGORY: MARKING Ms. Colleen Carey Mayco Coloramics, LLC 4077 Weaver Court South Hilliard, OH 43026 RE: THE COUNTRY OF ORIGIN MARKING OF UNGLAZED AND UNDECORATED CERAMIC BISQUE WARE FROM CHINA Dear Ms. Carey: This is in response to your letter dated August 19, 2008 requesting a ruling on whether marking the container in which unglazed and undecorated ceramic bisque ware is imported marked with the country of origin, in lieu of marking the bisque ware articles themselves, is an acceptable country of origin marking. A marked sample was submitted with your letter for review. You indicate that you import unglazed and undecorated ceramic bisque ware from China and that the cardboard containers carrying the bisque are properly marked with the country of origin. The cartons of bisque ware are then sold to distributors, who resell it, still in the carton, to ceramic studios. The studios unpack the undecorated ceramic bisque ware and put it on display for their customers to purchase and decorate. The submitted sample is representative of the bisque ware which you import. It consists of a cardboard box containing twelve bisque cross-shaped ornaments measuring approximately 4 inches in length by 2 ¾ inches in width. Each cross has a hole at the top for insertion of a loop. The individual ornaments are not marked with the country of origin. The cardboard box is marked “Made in China,” along with other product identifying information. You state that you believe, in accordance with section 134.32 (b) and (g), Customs Regulations, 19 CFR 134.32 (b) and (g), that marking the individual pieces of bisque ware would cause injury to the bisque and compromise the ability to sell it for the following reasons: The adhesive required to affix a sticker to the bisque would act as a resist to glazing. The glaze would not stick to the area where the glue had been applied. Attempts to remove the glue, such as washing, scraping, etc., would also damage the bisque, making the surface resistant to glazing. These articles are further processed in the United States by the ultimate consumer, which would conceal the origin of the articles in such a manner that any mark contemplated by this part would necessarily be obliterated, destroyed, or permanently concealed. Enclosing the bisque ware in a bag that could be marked is economically prohibitive. Plus, certain shapes would not lend themselves to such packaging. 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. 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. Friedlaender & Co. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940). As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. Section 134.32 (b), Customs Regulations (19 CFR 134.32 (b)), provides that articles that cannot be marked prior to shipment to the United States without injury may be excepted from the marking requirements of Part 134. You indicate that application of a sticker to the bisque ware would damage the bisque, making the surface resistant to glazing. You also state that enclosing the bisque ware in a bag that could be marked is economically prohibitive and that certain shapes would not lend themselves to such packaging. Section 134.44 (a), Customs Regulations (19 CFR 134.44 (a)), generally provides that any method of marking at any location insuring that country of origin will conspicuously appear on the article shall be acceptable. Such marking must be legible and sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed. The ceramic bisque ware is capable of being marked prior to shipment without injury, using methods other than a sticker or a marked bag. Alternative methods of marking such as: ink stamping, etching, or the use of a hang tag would be acceptable. Consequently, the marking exception under section 19 CFR 134.32 (b) does not apply. Section 134.32 (g), Customs Regulations (19 CFR 134.32 (g)), provides that articles to be processed in the United States by the importer or for his account otherwise than for the purpose of concealing the origin of such articles and in such a manner that any mark contemplated would by this part would necessarily be obliterated, destroyed, or permanently concealed. Although the bisque ware will be decorated after purchase by the ultimate purchaser, 19 CFR 134.32 (g) applies to articles to be processed by the importer or for his account. Decorating the bisque ware does not constitute further processing. An ultimate purchaser is defined in Section 134.1 of the Customs Regulations, as “the last person in the U.S. who will receive the article in the form in which it was imported”. The regulation further provides that if the imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the article to a process which results in a substantial transformation. Section 134.35, Customs Regulations (19 CFR 134.35), implementing the principle of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98), provides that an article used in the U.S. in manufacture which results in an article having a name, character, or use differing from that of the imported article will be considered substantially transformed, and therefore the manufacturer or processor in the U.S. who converts or combines the imported article will be considered the ultimate purchaser of the imported article within the contemplation of 19 U.S.C. 1304(a). Accordingly, such article shall be excepted from marking, and only in such cases must the outermost container of the imported article be marked to indicate the country of origin of the article. The ceramic bisque ware will not be used in manufacture resulting in a substantial transformation. Consequently, the marking exception under section 19 CFR 134.32 (g) does not apply and each ceramic bisque ware item must be individually marked with the country of origin to satisfy the requirements of the marking statute. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Sharon Chung at (646) 733-3028. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division