MAR-2-05 CO:R:C:V 734314 GRV
Ms. Lynnette Keffer
Jones & Klink Corporation
A Customhouse Brokerage Firm
P.O. Box 92815
Los Angeles, CA 90009-2815
RE: Location of country of origin markings on checkbook wallets
and eyeglass/coin purses individually packaged in unsealed
poly bags for mail order retail sale. Ultimate Purchaser; 19
CFR 134.1(d)(3); article marking; 19 CFR 134.41(b); conspic-
uousness (visibility); 086861; 19 CFR 134.41(a); permanence;
package marking; C.S.D. 90-17; C.S.D. 90-63;
Dear Ms. Keffer:
This is in response to your letter of July 18, 1991,
addressed to the Area Director of Customs, New York Seaport, on
behalf of Value Showcase, a/k/a Arizona Mail Order Company, Inc.,
requesting a ruling regarding the country of origin marking
requirements applicable to checkbook wallets and eyeglass/coin
purses individually packaged in unsealed poly bags. A sample of
each product--as bagged at the time it is imported--was submitted
for examination. Your letter was forwarded to this office on
August 21, 1991, for a direct reply.
FACTS:
Checkbook wallets and eyeglass/coin purses, both made in
China of scrap leather patch work and individually packaged in
unsealed poly bags, are imported into the U.S. for retail sale by
mail order. The articles and poly bags are each marked to
indicate the country of origin of the articles, and you indicate
that the articles are sold in these poly bags.
The checkbook wallet is of a fold over design, such that the
checkbook portion can be accessed separately from the wallet
portion. Within the checkbook compartment is a separate check-
book cover that is permanently affixed to the compartment. On
the inside of this checkbook cover the country of origin is
indicated by means of non-contrasting color, i.e., blind, stamp,
printed in approximately 8-point type (<1/8" letters). The
eyeglass/coin purse is marked by means of a fabric label that is
glued to the top portion of the interior in approximately the
same size type as the checkbook, but is located on the underside
of the label.
The poly bags are transparent and of the disposable type.
They are marked by means of sticker labels, which denote the
catalog number of the enclosed article, the color, and the
country of origin, printed in approximately 8-point type (<1/8"
letters), the same size type as the articles are marked. The
packaged merchandise is sold direct to the public by catalog
offering and mail ordered; none of the merchandise is sold
through retail shops.
ISSUE:
Whether the present country of origin markings on the
submitted samples (wallets and purses) are sufficient to meet the
marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b).
LAW AND ANALYSIS:
The marking statute, 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
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 pur-
chaser the English name of the country of origin of the article.
Part 134, Customs Regulations (19 CFR Part 134), implements the
country of origin marking requirements and exceptions of 19
U.S.C. 1304.
The primary purpose of the country of origin marking statute
is to "mark the goods so that at the time of purchase the ulti-
mate purchaser may, by knowing where the goods were produced, be
able to buy or refuse to buy them, if such marking should influ-
ence his will." United States v. Friedlaender & Co., 27 CCPA
297, 302, C.A.D. 104 (1940).
The "Ultimate Purchaser" Consideration
The "ultimate purchaser" is defined generally as the last
person in the U.S. who will receive the article in the form in
which it was imported. 19 CFR 134.1(d). Example (3) of this
section provides that if an article is to be sold at retail in
its imported form, the purchaser at retail is the "ultimate
purchaser." In this case, the consumer who mail orders the
merchandise is the ultimate purchaser, because (s)he will be last
person in the U.S. to receive the imported merchandise in the
form in which it is imported.
The Article Marking Exception
Section 134.32(d) provides that if the marking of the
containers will reasonably indicate 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 purchasers will
receive the article in its original, unopened and properly marked
container.
In C.S.D. 90-17, sunglasses that were not marked to indicate
their country of origin marking were imported for sale to retail
consumers in clear, unsealed plastic bags that were marked with
the article's country of origin. Although we noted that the
country of origin marking on the plastic bags was legible,
permanent and conspicuous within the meaning of 19 U.S.C. 1304,
we stated that the article marking exception at 134.32(d) was
inapplicable to the glasses, as the plastic bags were not sealed,
thus, assuring Customs that in all foreseeable circumstances the
articles would reach the ultimate purchasers in their original
unopened marked container. Accordingly, we held that the glasses
themselves had to be marked with their country of origin, as
required by 19 U.S.C. 1304. See also C.S.D. 90-63.
In this case, because the poly bag containers are unsealed
and of the disposible type, i.e., flimsy and plain, we are not
convinced that they will always remain with the articles until
the articles reach the ultimate purchaser. Further, because the
articles are delivered to consumers by mail, based on catalog
sales, we find that the country of origin marking on the poly
bags is more for the benefit of the importer in tracking inven-
tory than for the benefit of the ultimate purchasers. Thus,
although the country of origin marking on the poly bags is
conspicuous for purposes of 19 U.S.C. 1304 and 19 CFR 134.41(b),
the articles themselves must be conspicuously marked with their
country of origin, as no assurances are present that in all
foreseeable circumstances the articles will reach the ultimate
purchasers in their original unopened marked containers.
The Conspicuous Marking Requirement
The clear language of 1304 requires 'conspicuous' marking,
and to this end 134.41(b) further provides, in part, that the
ultimate purchaser in the U.S. must be able to find the marking
easily and read it without strain. In this regard, we have noted
that the concept of conspicuousness embraces two concerns:
(1) visibility, which is concerned with the requirement that the
marking must be able to be found easily, and (2) legibility,
which is concerned with the requirement that the marking must be
able to be read without strain. The method of marking should
ensure that the ultimate purchaser can easily discover the
country of origin marking upon a casual inspection of the
merchandise. Thus, while the 8-point print size in this case is
an adequate print size in which to denote the country of origin,
i.e., the marking is legible in that it is easy to read once it
is located, the locations of the markings are not conspicuous--
visible--enough, rendering the markings difficult to find in the
first instance.
In this case, the wallets are marked with their country of
origin by means of a non-contrasting blind stamp, which is
placed on the inside of the checkbook cover. To discover this
marking, the ultimate purchaser must carefully examine two
different surfaces in the checkbook compartment, which may not be
the reason the article is purchased in the first place--the
wallet compartment being as prevalent as the checkbook compart-
ment. Accordingly, we do not find the country of origin marking
on the inside of the checkbook cover to be conspicuous, as
required by 19 CFR 134.41(b), in that ultimate purchasers cannot
easily discover it upon a casual inspection of the article; its
location is not easy to find. But we note that we have previ-
ously held that adhesive labels affixed to wallets, "secure and
permanent enough to remain on the wallet until the ultimate
purchaser receives the wallet," satisfy the country of origin
marking requirements. See Headquarters Ruling Letters (HRLs)
719871 dated September 1, 1982; 730946 dated January 4, 1988;
731380 dated June 15, 1988; 732836 dated December 28, 1989; and,
732100 dated January 18, 1990 (all dealing with the label marking
of wallets).
The eyeglass/coin purses are marked with their country of
origin by means of a fabric label that is lightly glued inside
the top portion of the purse, which is not sufficiently secure to
remain with the article until it reaches the ultimate purchaser.
Further, the country of origin designation is denoted on the back
side of the label. In Headquarters Ruling Letter (HRL) 086861
dated June 2, 1990, we considered whether a country of origin
marking on the back of a label sewn into ballet slippers was
conspicuous within the meaning of the marking laws. Citing prior
rulings which found that country of origin markings on the backs
of labels were not easy to find and, therefore, were not
conspicuous, we stated that the ultimate purchaser should not
have to fold over the label to read the country of origin
marking. Accordingly, we found that the country of origin
marking on the back of the sewn-in label was not conspicuous
within the meaning of the marking laws and that the marking
should be placed on the front of the label. Applying this
holding to the country of origin marking on the eyeglass/coin
purses requires that the country of origin marking be relocated
to the topside of the label.
HOLDING:
The country of origin markings presently employed on the
wallets and purses are not sufficient to meet the marking
requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b). In the
case of the wallets, it is not easy to find; in the case of the
purses, it is neither readily visible nor sufficiently permanent.
Sincerely,
John Durant, Director
Commercial Rulings Division