MAR 2-05 CO:R:C:V 733781 EAB
Mr. Charles H. Powell
Intercontinental-Powell, Inc.
1 Poston Road, Suite 230
Charleston, South Carolina 29407
Re: Country of origin marking of imported brass curtain rods and
fittings. containers. 19 U.S.C. 1304; 19 CFR 134.32(h);
C.S.D. 80-114; 733096; 731967
Dear Mr. Powell:
This is in response to your letter dated September 14, 1990,
on behalf of Vesta Inc., in which you request a binding ruling on
the country of origin marking requirements of imported brass
curtain rods and fittings.
FACTS:
Vesta Inc. imports brass curtain rods and fittings that are
manufactured in France. Vesta Inc. is a wholesaler, selling the
imported articles to designer and drapery shops. The articles
are listed in a catalogue, a copy of which you have provided. On
the back of the catalogue is a gummed label, permanently affixed,
identifying Vesta Inc. as a wholesaler and giving its U.S.
address and toll free telephone number. This label obscures the
country of origin disclosure on the bottom of the back page of
the catalogue, and no other country of origin statement appears
anywhere on the catalogue.
You have also submitted a photocopy of a proposed catalogue
that will bear the phrase "Made in France" on its first and every
following page.
You state that the only means of purchase from the designer
and drapery shops to whom you wholesale the curtain rods and
fittings is by means of the consumer ordering his/her selection
through the salesperson from the catalogue items.
You have not submitted exemplars of the curtain rods and
fittings, nor have you submitted for our examination a sample of
the packaging containing the articles in their imported form.
You are of the opinion that the imported articles may be
excepted from individual country of origin marking, pursuant to
19 CFR 134.32(h), since the revised catalogue will clearly
indicate to an ultimate purchaser in the U.S. the English name of
the country of origin of the article. You correctly note that
the containers reaching the ultimate purchasers of articles so
excepted are themselves excepted pursuant to 19 CFR 134.22(d)(1).
ISSUE:
May foreign articles and the containers in which they reach
the ultimate purchaser in the U.S. be excepted from country of
origin marking under 19 CFR 134.32(h) and 19 CFR 134.22(d)(1),
where the only method of purchasing the articles is through
selecting them from a catalogue which lists the country of origin
of the articles?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304) generally provides that all articles of foreign origin (or
their containers) imported into the U.S. are required to be
legibly, conspicuously and permanently marked to indicate the
country of origin to an ultimate purchaser in the U.S.
As provided in 19 U.S.C. 1304(a)(3)(H), implemented in 19
CFR 134.32(h), an article is excepted from marking where the
ultimate purchaser, by reason of the circumstances of the
importation, must necessarily know the country of origin of such
article even though it is not marked to indicate its country of
origin. Containers or holders of articles within the exception
set forth in 19 CFR 134.32(h) are not required to be marked to
indicate the origin of the contents. See 19 CFR 134.22(d)(1).
The applicability of the exception allowed under 19 CFR 134.32(h)
depends upon the identity of the ultimate purchaser. Section
134.1(d), Customs Regulations (19 CFR 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.
In this case, the prospective customer who views the catalogue in
order to select and order the imported brass curtain rods and
fittings is the last person in the U.S. to pay consideration for
and receive the articles, and is, therefore, the ultimate
purchaser of them.
Generally speaking, Customs requires that the importer be
the ultimate purchaser of the imported article and have direct
contact with the foreign supplier for 19 CFR 134.32(h) to apply.
For example, in C.S.D. 80-114 (HQ 711081, September 26, 1979),
Customs found that where the ultimate purchaser was the importer
that owned an interest in the company from which it imported the
articles, and ordered the articles directly from that company,
the exception under 19 U.S.C. 1304(a)(3)(H) applied. In HQ
733096, February 8, 1990, Customs applied this exception where
the ultimate purchaser was the importer and also the parent
corporation of its wholly owned subsidiary, from which the parent
corporation ordered the foreign articles. See also Rulings
730243 (March 5, 1987) and 731583 (May 31, 1989).
In U.S. Wolfson Bros. Corp. v. United States, 52 Cust. Ct.
86, 91 (1964), the court cited with approval the following
statement from "Exporting to the United States":
The clearest application of this [19 CFR
134.32(h)] exemption is when the contract
between the ultimate purchaser in the [U.S.]
and the supplier abroad insures that the
order will be filled only with articles
grown, manufactured, or produced in a named
country.
In HQ 731967 (May 11, 1990), Customs granted exceptions from
marking under 19 CFR 134.32(h) and 134.22(d)(1) where the
contract between the importer and the ultimate purchaser
specifically required article labelling that identified the name
and country of the manufacturer from whom the goods were ordered.
In that case the ultimate purchaser was a discrete entity, namely
an agency of the U.S. government, and the disclosure of the
origin of the articles supplied was mandated by requirements
other than customs laws.
In this case, although Vesta Inc. has direct dealings with
the foreign manufacturer and necessarily knows the country of
origin of the imported articles by reason of the circumstances of
their importation, Vesta Inc. is not the ultimate purchaser.
Although it is likely that the customers who are the ultimate
purchasers will see the country of origin information on the
catalogue, we cannot conclude that all customers will view the
catalogue; some may rely solely on statements of sales personnel.
HOLDING:
French brass curtain rods and fittings may not be excepted
from country of origin marking under 19 CFR 134.32(h) where the
contract requiring such goods is between the ultimate purchaser
and a retailer who offers the goods for sale by way of selection
from a catalogue provided by the importer/wholesaler.
Sincerely,
John Durant, Director
Commercial Rulings Division