MAR-2 RR:TC:SM 559788 AT
Peter S. Herrick, Esq.
3520 Crystal View Court
Miami, Florida 33133
RE: Request for reconsideration of NY A81142 concerning the
country of origin marking requirements for optical cleaning
cloths imported from Korea; ultimate purchaser; marking
retail container in lieu of article; 19 CFR 134.1(d); 19 CFR
134.32(d); NY A81142 revoked
Dear Mr. Herrick:
This is in response to your letter dated April 11, 1996, on
behalf Crystal Trading Co., Ltd. ("Crystal") requesting
reconsideration of NY A81142 dated April 3, 1996. A sample
cleaning cloth was submitted for our review.
FACTS:
NY A81142 concerned eyeglass cleaning cloths of Korean
origin imported into the U.S. in disposable boxes marked with the
country "Korea" (100 cloths to a box) which are then distributed
to optical doctors and laboratories in the U.S., who in turn give
these cloths to their customers free of charge. Our New York
office ruled that the cloths are required to be individually
marked with their country of origin and that marking only the
boxes was not an acceptable country of origin marking for the
imported cloths under 19 U.S.C. 1304. In ruling that the
imported cloths are required to be individually marked, our New
York office determined that the ultimate purchasers of the
imported cloths are the customers who receive the cleaning cloths
from doctors and laboratories pursuant to 19 CFR 134.1(d). You
have requested Headquarters'reconsideration of NY A81142. ISSUE:
Do the cleaning cloths have to be individually marked with
their country of origin if the boxes in which the cloths are
packaged and distributed to doctors and laboratories in the U.S.
are marked with the country of origin "Korea"?
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 imported into the U.S. 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 U.S. 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.
Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.31(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.
Generally, if an imported article is distributed as a gift,
the recipient is the ultimate purchaser, unless the good is a
good of a NAFTA country (See, 19 CFR 134.1(d)(4)). However,
Customs has ruled that in certain circumstances, such as when the
imported article is given to the recipient as part of a service,
the recipient of the article is not the ultimate purchaser.
Rather, the ultimate purchaser of the imported article is the one
who distributes the article. In HQ 559542 (April 24, 1996)
Customs ruled that a pesticide servicing company which imported
acrolein (a pesticide substance) of German origin into the U.S.
was the ultimate purchaser of the imported acrolein, although the
pesticide company subsequently, as part of a service contract,
either applied the acrolein for its customers (oil field
operators) or the customers (irrigation districts and others)
applied the pesticide themselves. Customs stated that the
pesticide company is providing more of a service than just a
product, and thus is considered to be the ultimate purchaser of
the imported acrolein and the containers used at the customer's
site did not have to be individually marked with the country of
origin of the acrolein. In HQ 734232 (November 20, 1991),
Customs considered a pharmaceutical drug from Italy, which was
packaged in ampules for intravenous use and only dispensed by
doctors and nurses. The ultimate purchaser was determined to be
the hospital pharmacy and, therefore, it was appropriate if only
the 5-pack packages of ampules in which the pharmacy received the
drug was marked with the country of origin. In HQ 734524 (July
30, 1992), Customs found an airline to be the ultimate purchaser
of frozen meals served to passengers.
Similarly, we find that the ultimate purchaser of the
cleaning cloths is the optical doctors or laboratories who give
the cloths to their customers free of charge and not the
customers. Like the pesticide service company in HQ 559542, it
is our opinion that the doctors and laboratories who give the
cloths to their customers are providing more of a service than
just a product. In our opinion, a customer's principle reason
for going to the doctor or optical laboratory is to receive some
kind of eye service (whether it is an eye examination, obtaining
a prescription for eye glasses or contacts, or buying a pair of
eyeglasses), which may include receiving an article free of
charge as part of the service, such as cleaning cloths. Thus, we
find that the ultimate purchaser of the imported cleaning cloths
are the optical doctors or laboratories who give the cleaning
cloths to their customers free of charge and not the customers
who receive the cloth as ruled in NY A81142.
19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d) provides that
if the marking of the containers will reasonably indicate to the
ultimate purchaser the origin of the enclosed imported articles,
then the articles themselves need not be individually marked.
This exception is applicable in cases where the article is
imported in a properly marked container and Customs officials at
the port of entry are satisfied that, in all reasonably
foreseeable circumstances, the ultimate purchaser will receive
the article in its original, unopened and properly marked
container. See, HQ 732437 (October 4, 1989) (dental impression
trays); HQ 733325 (August 8, 1990) (intravenous drip sets); HQ
733678 (August 30, 1990) (surgical towels).
Thus, provided the cleaning cloths are imported in properly
marked containers and the Customs officials at the port of entry
are satisfied that in all reasonably foreseeable circumstances
the optical doctors or laboratories will receive the cleaning
cloths in their original, unopened and properly marked container,
the imported cloths are excepted from being individually marked
with their country of origin. Properly marking the containers
with the country of origin--Korea--in lieu of marking the
cleaning cloths themselves is an acceptable country of origin
marking for the imported cloths under 19 U.S.C. 1304 and 19 CFR
Part 134. Accordingly, New York ruling NY A81142 is hereby
revoked.
We note that while we have determined that the optical
cleaning cloths are excepted from marking under 19 U.S.C. 1304
(a)(3)(D) and 19 CFR 134.32, other marking requirements may still
exist under the Textile Fiber Products Identification Act. We
suggest that you contact the Federal Trade Commission, Washington
D.C. 20580, concerning these other marking requirements.
HOLDING:
The ultimate purchaser of the imported cleaning cloths are
the optical doctors or laboratories who give the cleaning cloths
to their customers free of charge and not the customers who
receive the cloths as ruled in NY A81142. Thus, provided the
cleaning cloths are imported in properly marked containers and
the Customs officials at the port of entry are satisfied that in
all reasonably foreseeable circumstances the optical doctors or
laboratories will receive the cleaning cloths in their original,
unopened and properly marked container, the imported cloths are
excepted from being individually marked with their country of
origin. Properly marking the containers with the country of
origin--Korea--in lieu of marking the cleaning cloths themselves
is an acceptable country of origin marking for the imported
cloths under 19 U.S.C. 1304 and 19 CFR Part 134. New York ruling
NY A81142 is hereby revoked.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is entered. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division