The marking rule is 19 USC 1304, and it is older than the trade agreements. Every article of foreign origin imported into the United States must be marked with its country of origin, in English, in a conspicuous place, as legibly, indelibly, and permanently as the nature of the article permits. The marking has to survive to the ultimate purchaser, which is usually the consumer, not the importer.
The country of origin for marking is decided by the substantial transformation rule: the country where the article was last substantially transformed into a new and different article of commerce, with a new name, character, or use. A product assembled in Mexico from Chinese components may be marked Mexico, if the assembly substantially transformed the components, or China, if it did not. The marking follows the transformation, not the shipment.
The marking rule is not the USMCA origin rule, and the two are confused more often than any other pair in the trade. USMCA origin decides whether a good qualifies for preferential tariff treatment, and it follows the agreement's specific rules in Chapter 4. Marking decides what country label goes on the product, and it follows substantial transformation. A product can be USMCA-originating and marked with a different country, or marked with a country and not USMCA-originating, and both are correct at the same time.
The marking has to be legible, indelible, and permanent as the nature of the article permits. A sticker on a product that will be used in water is not permanent. A marking on the packaging that is thrown away before the buyer sees the product is not conspicuous. A marking in a language other than English is not a marking under the statute.
The marking has to be in a conspicuous place, which means a place the ultimate purchaser will see in the ordinary course of handling the article. A marking hidden inside a battery compartment, or on the bottom of a product that sits on a shelf, is not conspicuous, and CBP will say so.
The exceptions are narrow. Articles that cannot be marked as the nature of the article permits, such as crude substances, or articles that are marked in a way that would damage them, can be excepted, and the marking can then go on the container. The exception is not a choice. It is a finding, and CBP makes it.
An unmarked article can be held at the border until it is marked, and the marking at the border is done at the importer's expense, under CBP supervision, with the delay that comes with it. The shipment that was due on a Friday is marked on the following Tuesday, and the customer who needed it on Friday buys from someone else.
CBP can also assess a marking duty of 10 percent of the value of the article, in addition to the ordinary duty. The marking duty is not a penalty for a bad classification. It is a separate duty for a missing mark, and it applies to the value of the article, not to the duty that was already paid.
The fix is the check before the shipment: the marking on the article, in English, in a conspicuous place, legible and permanent, with the country decided by substantial transformation, not by the country the goods were shipped from. The ECCN says what the product is, and the marking says where it was made, and the entry needs both, on different lines, for different reasons.
Under 19 USC 1304, every article of foreign origin must be marked with its country of origin, in English, in a conspicuous place, as legibly, indelibly, and permanently as the nature of the article permits, so the ultimate purchaser can see it.
No. Marking follows substantial transformation and decides what country label goes on the product. USMCA origin follows the agreement's Chapter 4 rules and decides whether the good qualifies for preferential tariff treatment. A product can satisfy one and not the other.
CBP can hold the goods until they are marked, at the importer's expense and under supervision, and can assess a marking duty of 10 percent of the value of the article, in addition to the ordinary duty.
In a conspicuous place the ultimate purchaser will see in the ordinary course of handling the article. A marking hidden inside a compartment, on packaging that is thrown away, or in a language other than English does not satisfy the statute.