The country of origin marking of the imported USB flash drives

N288397 August 18, 2017 MAR-2-OT:RR:NC:N2:108 CATEGORY: Marking C.J. Erickson Cowan, Liebowitz & Latman, P.C. 114 West 47th Street 21st Floor New York, N.Y. 10036 RE: The country of origin marking of the imported USB flash drives Dear Mr. Erickson:This is in response to your letter dated July 14, 2017, filed on behalf of your client, Tiffany & Company (Tiffany), concerning the country of origin marking requirements for imported USB flash drives used in making key chains. A marked sample was not submitted with your letter for review. In your request, you state that Tiffany imports quantities of USB flash drives which are manufactured in China. The outer shipping cartons containing the boxes of these USB flash drives are permanently, legibly and conspicuously marked with the country of origin, “Made in China”. Subsequent to importation, the USB flash drives are sent to domestic contractors for combining them with domestically manufactured sterling silver key chains. You state that these USB flash drives are only used as components in the production of Tiffany branded sterling silver key chains and that each key chain is permanently marked with the Tiffany & Co. registered trademark. 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. 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. Section 134.1(d) defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35. In HQ 731432 (June 6, 1988), Customs set forth some factors to be considered in determining whether imported goods combined in the U.S. with domestic products were substantially transformed for country of origin marking purposes. The following six factors were considered:1) whether the article is completely finished;2) the extent of the manufacturing process of combining the imported article with the domestic article as compared with the manufacturing of the imported article;3) whether the article is permanently attached to its counterparts4) the overall importance of the article to the finished product;5) whether the article is functionally necessary to the operation of the finished article or whether it is an accessory which retains its independent function; and6) whether the article remains visible after the combining.These factors are not exclusive and there may be other factors relevant to a particular case and no one factor is determinative. See, HQ 728801 (February 26, 1986).Applying these factors to this case, we note that the USB flash drives are completely finished when they are imported. Although no specific information was presented regarding the manufacturing process involved in assembling the flash drives to the key chains other than through bolting, it does not appear that this process is complex or requires a great deal of skill. The USB flash drives are permanently attached to the key chains. Assessing the factors noted above, we find that the USB flash drives do not lose their separate identity as a result of combining them with other domestic components. The USB flash drive is the most significant component of the finished article, and in our opinion it imparts the essential character. Combining the USB flash drives with U.S. components in no way changes the characteristics of the USB flash drive, and the USB flash drive is clearly recognizable both before and after the assembly. With regard to the marking of imported components used in the domestic manufacture of finished articles, you cite 19 CFR 134.35 which states in pertinent part that the ultimate purchaser may be the domestic manufacturer, in which case the individual imported components are excepted from marking and only the outermost container is required to be marked. In this case, the manufacturing process leaves the identity of the imported USB flash drives intact, and the consumer or user of the article, who obtains the article after the processing, will be regarded as the “ultimate purchaser.” Moreover, attaching the imported USB flash drives to a key chain in the United States does not results in an article having a name, character, or use differing from that of the imported article. Thus, it is the opinion of this office that the imported USB flash drives are not substantially transformed as a result of the U.S. processing and Tiffany, the U.S. importer/manufacturer, cannot be considered the ultimate purchaser of the subject merchandise. Accordingly, the imported USB flash drives are not excepted from marking and must be individually marked with country of origin, e.g. Flash Drives made in China. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Lisa Cariello at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division