MAR 2-05 CO:R:C:V 734541 LR
Barry E. Powell, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
707 Wilshire Boulevard
Suite 5320
Los Angeles, California
RE: Country of origin marking of imported promotional pins;
19 CFR 134.32(d); individual heat sealed polybags;
conspicuous
Dear Mr. Powell:
This is in response to your letters dated March 12 and June
10, 1992 on behalf of your client, Pacific Enterprises (Pacific),
requesting a ruling on the country of origin marking of imported
promotional pins.
FACTS:
Pacific is an importer of promotional pins. Pacific sells
the pins only to Advertising Specialty Distributors (ASD's) whose
clients distribute the pins free of charge for promotional
purposes. Based upon a specific order from an ASD, Pacific
orders the pins from Taiwan or Malaysia. Pacific receives the
pins in large cartons with each order separated in a large
polybag. In the large polybags, each pins is individually
packaged in its own sealed polybag which is marked with the
country of origin. The individual polybags will be of 0.04 mm or
0.06 mm in thickness and will be sealed at both ends by automatic
heat sealing equipment.
Pacific follows the ASD's instructions and ships the
merchandise directly to the ASD or to the ASD's client. At the
time of distribution, the large polybag is opened and the end
user receives one or two individually marked polybags which
contain one pin each. You state that the pins are never removed
from the polybag prior to receipt by the end user but are kept in
the individual polybags to protect them from becoming tarnished
or smudged. Letters to this effect were submitted by two ASD's
and by an ASD client.
Several sample pins were submitted, each one packaged in its
own polybag which is marked with the country of origin. Each bag
is to be heat sealed at both ends prior to importation. Three of
the samples are marked "Made in Malaysia" in large black capital
letters in approximately 9 point lettering several times on the
bag. (A point is a unit of measurement approximately equal to
0.01384 inches or nearly 1/72 inches and all type sizes are a
multiple of this unit). Three of the samples are marked "Made in
Taiwan" in small black capital letters in approximately 4 point
lettering. On two of these bags, the country of origin marking
is repeated several times.
ISSUES:
Whether the marking of the country of origin on the
individual polybags instead of the pins themselves is acceptable.
If so, whether the marking of the country of origin on the
individual polybags is conspicuous.
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. Part 134, Customs
Regulations (19 CFR Part 134), implements the country of origin
marking requirements and exceptions of 19 U.S.C. 1304.
Articles for which the marking of the containers will
reasonably indicate their origin are excepted from individual
marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). This
exception applies only if the article in question is imported in
a properly marked container and Customs is satisfied that the
article will reach the ultimate purchaser in this original marked
unopened container. As provided in 19 CFR 134.1(d) the ultimate
purchaser is generally the last person in the U.S. who will
receive the article in the form in which it was imported. That
section further provides that if the article is distributed as a
gift, the recipient of the gift is the ultimate purchaser.
Customs has ruled that the ultimate purchaser of promotional
items is the recipient. See HQ 734202 (November 12, 1991)
(ultimate purchaser of pens given away by companies to their
clients or customers as promotionals is the recipient; HQ 734482
(February 12, 1992) (ultimate purchaser of pins that are given
away at the time of membership renewal is the recipient).
Similarly, in this case, the ultimate purchaser of the imported
promotional pins is the recipient. As such, the marking of the
each polybag in lieu of the pins themselves is acceptable under
19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) only if Customs is
satisfied that the recipients will receive the pins in their
original individually marked polybags.
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. In this case, the importer does not distribute the pins
directly to the ultimate purchaser, but rather through
distributors. Therefore, the importer cannot conclusive state
that the pins will in all cases remain in their individual bags
until receipt by the ultimate purchaser. However, statements by
two ASD's indicating that they do not remove the pins from their
individually marked polybags prior to distribution to its clients
and one such statement from a client have been submitted.
Although these statements alone are not conclusive, the fact that
each pin is individually packaged in its own heat sealed bag
tends to show that the pins are designed to be distributed in
this fashion. Also, the fact that the pins are small and could
get lost or tarnished were they to be removed prior to receipt by
the ultimate purchaser, is further evidence that they will remain
in their marked polybags. Based on all these considerations, we
believe that it is extremely likely that the pins will remain in
their original heat sealed polybags until receipt by the ultimate
purchaser. Accordingly, we find that the marking of the
individual polybags in lieu of the pins themselves is acceptable.
The remaining issue is whether the polybags are
conspicuously and legibly marked with the country of origin. As
provided in 19 CFR 134.41(b), the ultimate purchaser must be able
to find the marking easily and read it without strain. There is
no question that the samples bags which are marked "Made in
Malaysia" satisfy this standard. The marking is quite large, and
cannot be missed. The bags which are marked "Made in Taiwan"
present a closer question. Although the marking is smaller than
that which might normally be considered acceptable on a larger
article, because the pins and bags are small and the ultimate
purchaser would be required to look closely at the article in
order to remove the heat sealed polybag, we consider the marking
to be acceptable. We also note that the markings appear in
contrasting letters and that in two instances they appear several
times on the bag. We caution, however, that the sample bags
satisfy the minimum standard of legibility and conspicuousness.
HOLDING:
The proposed country of origin marking on the submitted
sample promotional pins, as described above, satisfies the
marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134,
provided the district director at the port of entry is satisfied
that they will be sold in the manner described.
Sincerely,
John Durant, Director