H313455

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H313455 January 19, 2021 OT:RR:CTF:FTM H313455 MD CATEGORY: Marking Assistant Center Director U.S. Customs and Border Protection Consumer Products and Mass Merchandising Center 101 East Main Street Norfolk, Virginia 23510 RE: Internal Advice Request; Country of Origin Marking of Various Bulk Toiletry Products from Canada Dear Assistant Center Director: This is in response to your correspondence, dated August 28, 2020, forwarding an internal advice request of May 12, 2020, initiated by counsel for Lush Manufacturing, Ltd. (“Lush” or “Importer”), concerning the country of origin marking of various bulk toiletry products from Canada. FACTS: Lush, headquartered in Vancouver, Canada, and with stores throughout the United States, sells various bulk toiletry products. As described by Importer, the subject various bulk toiletry products are of Canadian origin and consist of “creams, soaps, shampoos, shower gels, lotions, moisturizers, scrubs, masks and other cosmetics for the face, hair and body.” Due to Importer’s “mission and effort to support environmental conservation,” Importer retails many of its toiletry products under the “[N]aked” line (including bath bombs, bubble bars, soaps, shampoos, conditioners, etc.), as solid bard or balls sold in open containers (i.e. baskets, bins, boxes), with no individual wrapping or packaging.” These products are entered by Importer in marked containers, which include a certificate of marking noting that Importer’s goods are exclusively destined for its storefronts, where they will be repackaged. In 2019, the Consumer Products and Mass Merchandizing (“CPMM”) Center conducted a verification of the Importer’s marking procedures, ultimately informing Importer that multiple shipments of their products had been determined to be in violation of Section 304, Tariff Act of 1930 (19 U.S.C. § 1304). On January 14, 2020, the Importer requested a binding ruling, with respect to a proposed marking plan for their various bulk toiletry products, to the National Commodity Specialist Division (“NCSD”). Specifically, Importer sought to confirm that their proposed marking plan was compliant with 19 U.S.C. § 1304 requirements. On February 14, 2020, NCSD responded to Importer, stating that they were “precluded from ruling on an issue which is the subject of a current or completed Customs transaction,” instead recommending that Importer seek advice from the Office of Trade, Regulations and Rulings (Headquarters) via the Internal Advice procedure. On March 9, 2020, Importer filed a Certificate of Marking with the CPMM Center certifying that its entries in calendar year 2020 would be marked in accordance with their proposed marking plan. The certificate noted the proposed marking plan’s compliance with 19 U.S.C. § 1304 and Importer’s commitment to ensure that its employees abided by the marking plan’s provisions. On March 11, 2020, the CPMM Center granted approval of Importer’s proposed marking plan for a period of six months, with the potential for further certification at the expiration of that time period. Within its approval, the CPMM Center noted its understanding that Importer would be requesting an internal advice, stating that it would forward such a request to the Office of Trade, Regulations and Rulings. As stated, the CPMM Center received Importer’s internal advice ruling request, dated May 12, 2020, which it forwarded to Headquarters on August 28, 2020. To satisfy 19 U.S.C. § 1304 country of origin marking requirements, Importer developed a “comprehensive Marking Plan and country of origin marking policy”, which requires country of origin markings to be clearly affixed to signs at all containers of “Naked” products at retail stores. Importer notes that “[a]ll retail staff has been notified and trained on [Importer’s] Marking Plan.” Importer asserts that their marking plan ensures that the country of origin of its “Naked” products are displayed “in a conspicuous place in a legible, indelible, and permanent manner” as required by the marking requirements of 19 U.S.C. § 1304. Furthermore, Importer claims that their marking plan is “exempt from the marking requirements pursuant to 19 C.F.R. §§ 134.32(a)-(b) and 134.34” because the subject various bulk toiletry products are “incapable of being individually marked and any individual marking would cause injury to the products.” ISSUE: Whether the Importer’s proposed marking plan satisfies the country of origin marking requirements and whether the various bulk toiletry products are exempt from individual country of origin marking. 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 (or its container) imported into the United States shall be marked in a “conspicuous place” as “legibly, indelibly, and permanently” as the nature of the article (or 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. Title 19 C.F.R. Part 134 implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.41(b), Customs Regulations (19 C.F.R. § 134.41(b)), mandates that the ultimate purchaser in the United States 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 United States who will receive the article in the form in which it was imported. An article may be exempt from the country of origin marking requirements of 19 U.S.C. § 1304 if it falls within one of the exceptions to marking. With regard to the marking of containers, 19 C.F.R. § 134.32(d) implements the statutory exception by providing that an article may be excepted from marking if the marking on its container will reasonably indicate the article’s country of origin. Accordingly, the marking of a container in lieu of the article itself is acceptable if the article is imported in a properly marked box and U.S. Customs and Border Protection (“CBP”) is satisfied that in all foreseeable circumstances the article will reach the ultimate purchaser in a properly marked container. A related exception is provided under 19 C.F.R. § 134.34 and is applicable to articles which are to be packed after importation in retail containers qualifying for the former exception set forth at 19 C.F.R. § 134.32(d). The applicable portion of 19 C.F.R. § 134.34 states as follows: Exception for repacked articles. An exception under §134.32(d) may be authorized in the discretion of the Center Director for imported articles which are to be repacked after release from Customs custody under the following conditions: The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the United States. The importer arranges for supervision of the marking of the marking of the containers by Customs officers at the importer’s expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry. In such cases, the Center Director must be satisfied that the repacking will be done in accordance with all marking requirements, and in his discretion he may require the importer/repacker to give undertakings that this will be done. A certificate of marking by the importer is required under 19 C.F.R. § 134.26 if an article is intended to be repacked in retail containers after release from CBP custody or if the Center Director having custody of the article has reason to believe that it will be repackaged after its release. Relevant factors regarding whether an article is likely to remain in its original container include the chain of distribution, the type of container, and the nature of the article. Im

Section 304 of the 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 United States shall be marked in a “conspicuous place” as “legibly, indelibly, and permanently” as the nature of the article (or 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. Title 19 C.F.R. Part 134 implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.41(b), Customs Regulations (19 C.F.R. § 134.41(b)), mandates that the ultimate purchaser in the United States 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 United States who will receive the article in the form in which it was imported.An article may be exempt from the country of origin marking requirements of 19 U.S.C. § 1304 if it falls within one of the exceptions to marking. With regard to the marking of containers, 19 C.F.R. § 134.32(d) implements the statutory exception by providing that an article may be excepted from marking if the marking on its container will reasonably indicate the article’s country of origin. Accordingly, the marking of a container in lieu of the article itself is acceptable if the article is imported in a properly marked box and U.S. Customs and Border Protection (“CBP”) is satisfied that in all foreseeable circumstances the article will reach the ultimate purchaser in a properly marked container. A related exception is provided under 19 C.F.R. § 134.34 and is applicable to articles which are to be packed after importation in retail containers qualifying for the former exception set forth at 19 C.F.R. § 134.32(d). The applicable portion of 19 C.F.R. § 134.34 states as follows:Exception for repacked articles. An exception under §134.32(d) may be authorize