The country of origin marking of NEMA Traffic Cabinets from Mexico

N265202 June 18, 2015 MAR-2-85:OT:RR:NC:N1:112 CATEGORY: Marking Kelly S. Herman Counsel Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, N.W. Washington, D.C. 20004 RE: The country of origin marking of NEMA Traffic Cabinets from Mexico Dear Ms. Herman: This is in response to your letter dated May 29, 2015, requesting a ruling on behalf of your client, Peek Traffic Corporation, on whether the proposed method of marking of the container in which the NEMA Traffic Cabinet is imported with the country of origin in lieu of marking the article itself, is an acceptable country of origin marking. A marked container sample was not submitted with your letter for our review. You state the NEMA Traffic Cabinets, which are manufactured in Mexico, are principally used by municipalities to house traffic control equipment. They are described as an aluminum enclosure fitted with mounting rails, a thermostat, a fan, an internal light, and a ground fault interrupt electrical receptacle. The NEMA Traffic Cabinets are primarily imported by a municipality or a contractor for installation in a project on behalf of a municipality. The NEMA Traffic Cabinets may be die stamped on one side with a reference to the municipality where it is to be installed. At issue are whether the NEMA Traffic Cabinets are excepted from marking, thereby requiring only the outer container to be marked with the country of origin, and if the occasional die stamping of the municipality triggers the regulations governing the marking of articles bearing words or names of U.S. localities. 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. The country of origin marking requirements for a “good of a NAFTA country” are determined in accordance with Annex 311 of the North American Free Trade Agreement (NAFTA), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. Part 134, Customs Regulations, implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.45(a)(2) of the regulations provides that “a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a “good of a NAFTA country” as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.41(b) of the regulations 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) of the regulations provides that the ultimate purchaser of a good is the last person in the United States who purchases the good in the form in which it was imported. And lastly, Section 134.32 of the regulations sets forth some of the general exceptions to the marking requirements of 19 U.S.C. 1304. We would note that Customs and Border Protection (CBP) has concluded previously that a municipality or local government purchasing items for use by or in the municipality, was in fact, the ultimate purchaser, (See HQ H215535). However, for the purposes of this review and the limited facts presented, no determination is being made as to the status of the municipality as the ultimate purchaser. We are only providing guidance as to the marking of the NEMA Traffic Cabinets in the context of the municipality or their contractor acting as the ultimate purchaser. CBP has formerly ruled that articles may be excepted from the country of origin marking requirements of 19 U.S.C. 1304, under one of the country of origin marking exceptions that are set forth in 19 CFR 134.32 of the regulations. 19 CFR 134.32(h) provides, in pertinent part, an exception to the country of origin marking requirements for good of a NAFTA country for which the ultimate purchaser 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. Such items are excepted from individual marking under 19 U.S.C. 1304(a)(3)(H) and 19 CFR 134.32(h). As the ultimate purchaser, in this case the municipality or their contractor, has knowledge of the facts of the importation of the NEMA Traffic Cabinets and would reasonably know the origin of the goods purchased, application of 19 CFR 134.32(h) is appropriate and the NEMA Traffic Cabinets would be excepted from marking. Accordingly, 19 CFR 134.22(a), which pertains to containers of “contents excepted from marking”, states: “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”. Thus, if CBP is satisfied that the article will remain in its container until it reaches the ultimate purchaser, and if the ultimate purchaser can tell the country of origin of the NEMA Traffic Cabinets by viewing the container in which it is packaged, the NEMA Traffic Cabinets would be appropriately marked under this provision by marking only the outermost container. In regards to the NEMA Traffic Cabinets bearing the stamped name of the municipality where the item is to be installed, we are of the opinion that Section 134.46 of the regulations is not triggered as you suggest. In this situation, the municipality is not purchasing the NEMA Traffic Cabinet with their own name die stamped in order to convey the origin, but rather to establish municipal ownership, advertising, or decoration of the machine. Therefore, a municipality purchasing the NEMA Traffic Cabinet bearing their name would not be misled or deceived as to the origin of the product since they would be receiving the goods in the marked containers. It is also reasonable to presume they are aware that the cabinets were not manufactured in their municipal location, as the name they requested to be die stamped on the product would be their own. Thus, NEMA Traffic Cabinets, which are imported in containers that are marked in the manner described above, are excepted from marking under 19 CFR 134.32(h). Per 19 CFR 134.22(a), the marking of the container in which the NEMA Traffic Cabinets are imported and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for the imported goods provided the port director is satisfied that the article will remain in the marked container until it reaches the ultimate purchaser. This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181). 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 Karl Moosbrugger at karl.moosbrugger@cbp.dhs.gov. Sincerely, Gwenn Klein Kirschner Director National Commodity Specialist Division