THE COUNTRY OF ORIGIN MARKING OF JEWELRY

N256383 August 29, 2014 MAR-2 OT:RR:NC:N4:433 CATEGORY: MARKING Amy Johannesen, Esq. Cerny Associates, P.C. Attorneys at Law 24 Smith Street Building 2, Suite 102 Pawling, NY 12564 RE: THE COUNTRY OF ORIGIN MARKING OF JEWELRY Dear Ms. Johannesen: This is in response to your letter dated August 14, 2014 and received by the National Import Specialist Division on August 18, 2014, requesting a ruling on the country of origin marking of high fashion jewelry, such as bracelets, necklaces and earrings, which will be imported and sold in drawstring jewelry presentation bags. This ruling request is written on behalf of your client Outhouse LLC, d/b/a Eddie Borgo (Outhouse). Three samples were submitted, two bracelets and one collar necklace. Each sample is packed in its own proportionately-sized disposable drawstring jewelry presentation bag, and has a country of origin label with the words “Made in China” located at the neck of the bag. As requested, the samples submitted will be returned to you. Your ruling request seeks to confirm that jewelry produced in China or Thailand, and imported in disposable drawstring jewelry presentation bags of Chinese origin may be marked: (a) by a firmly attached sticker label at the neck of the disposable drawstring jewelry presentation bag in which it is packed, in accordance with 19 C.F.R. § 134.32(d), and (b) that the wording “Made in China” or “Made in Thailand,” as applicable, is an acceptable marking. You further seek to confirm that if Outhouse chooses to import the disposable jewelry presentation bags empty and in bulk to be filled in the United States, that upon importation, only the outer shipping carton need by marked with country of origin, and that upon being filled with jewelry, the disposable drawstring jewelry presentation bags marked with the words “Made in China” or “Made in Thailand,” as applicable, is an acceptable marking. The General Rules of Interpretation (GRIs) to the Harmonized Tariff Schedule of the United States provide at GRI 5 --- In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein: (a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character; (b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use. It has been suggested by you that the drawstring jewelry presentation bags, with each bag containing one piece of jewelry, are disposable. Without going into a discussion on whether or not the drawstring jewelry presentation bags are disposable, this office is of the opinion that GRI 5(a), HTSUS, is applicable, in that the Eddie Borgo logo is printed on each bag and each bag contains one piece of jewelry, indicating that the drawstring jewelry presentation bag(s), are suitable for long-term use and sold in that manner upon import into the United States. It is not, unusual, for designer fashion jewelry to be purchased within logo printed drawstring jewelry presentation bags, and kept and stored within those bags indefinitely by purchasers until ready to be worn. As such, the drawstring jewelry presentation bags are not required to be marked with their own country of origin. 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 United States 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 United States, 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). 19 C.F.R. § 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; this does not apply to a good of a NAFTA country. The merchandise concerned is not a NAFTA good. Therefore, if an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In the case before us, the ultimate purchaser of the jewelry piece is the consumer who purchases the product at retail. Pursuant to 19 U.S.C. § 1304(a)(3)(D) and 19 C.F.R. § 134.32(d), an exception from individual marking is applicable where the marking of a container of such article will reasonably indicate the origin of the article. This exception is normally applied in cases where the article is imported in a properly marked container and CBP personnel at the port of entry are satisfied that the ultimate purchaser will receive it in the original unopened marked container. Relevant factors regarding whether an article is likely to remain in its original container may include the nature of the article, the type of container, and the chain of distribution. Upon examination of the three sampled drawstring jewelry presentation bags and their individual jewelry piece contained therein, we find that all of drawstring jewelry presentation bags have a label at the neck of the bag marked “Made in China,” and that the two bracelets and one collar necklace have no country of origin markings. Because the jewelry pieces are not marked with their own country of origin (China or Thailand), we find that “Made in China” on the neck of the drawstring jewelry presentation bags lends to the impression that the bags themselves are made in China, over the fact that the jewelry pieces may not even be made in China, but rather Thailand. Even if China was the only country of origin for the jewelry pieces, the purchaser would be under the impression that the bags were made in China, with no conception of where the jewelry pieces were made. The same holds true for the drawstring jewelry presentation bags marked “Made in Thailand,” which gives the impression that the bag itself is of Thai origin, with no conception of where the jewelry pieces were made. Consequently, we are of the opinion that the marking of the drawstring jewelry presentation bags with “Made in China” or “Made in Thailand” is not an acceptable country of origin marking for the jewelry pieces. With respect to the findings of the aforementioned paragraph, and the fact that the drawstring jewelry presentation bags are not marked with their own country of origin and the jewelry pieces are sold within those drawstring jewelry presentation bags, we find that the drawstring jewelry presentation bags marked with firmly attached sticker labels with the words “Jewelry Made in China” or Jewelry Made in Thailand,” as applicable, is an acceptable marking, provided that the drawstring jewelry presentation bags themselves are not marked with country of origin. Accordingly, 19 C.F.R. § 134.32(d) is satisfied In regard to seeking confirmation on drawstring jewelry presentation bags imported empty and in bulk to be filled with jewelry in the United States, and to whether only the outer shipping carton need be marked with country of origin, two marking exceptions avail themselves to Outhouse: 19 C.F.R. § 134.32(f) “Articles imported for use by the importer and not intended for sale in their imported or any other form” and 19 C.F.R. § 134.32(h) “Articles for which the ultimate purchaser must necessarily know, or in the case of a good of a NAFTA country, must reasonably know, the country of origin by reason of the circumstances of their importation or by reason of the character of the articles even though they are not marked to indicate their origin.” Both marking exceptions, 19 C.F.R. § 134.32(f) and 19 C.F.R. § 134.32(h), lead back to 19 C.F.R. § 134.22 (a). The provision of 19 C.F.R. § 134.22 (a) provides: Contents excepted from marking. When an article is excepted from the marking requirements by subpart D of this part, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of origin of the article whether or not the article is marked to indicate its country of origin. Since Outhouse will be filling the drawstring jewelry presentation bags with their individual jewelry piece upon importation into the United States, they are considered the ultimate purchaser of the bags, and as such, only the outer shipping carton need by marked with country of origin China. Country of origin markings “Made in China” or “Made in Thailand” should not be on the drawstring jewelry presentation bags, imported empty and in bulk, for the same reason as stated above, in that these two country of origin markings lend to the impression that the bags themselves are made in one or the other country. For bulk shipments, if the drawstring jewelry presentation bags are going to have firmly attached sticker labels with country of origin markings “Jewelry Made in China” or “Jewelry Made in Thailand,” then the outer box should be marked to indicate “Drawstring Jewelry Presentation Bags Made in China.” 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 Neil H. Levy at E-mail address: neil.h.levy@cbp.dhs.gov. Sincerely, Gwenn Klein Kirschner Director National Commodity Specialist Division