MAR-2-05 CO:R:C:V 734639 RSD
Mr. J.R. Robinson
J.R. Robinson & Associates, Inc.
18115 Second Avenue, N.
Minneapolis, Minnesota 55447
RE: Country of origin marking requirements for a molded plastic
container used to carry small objects known as a "SUBMARIN";
legible; conspicuous; permanent; 19 CFR 134.41
Dear Mr. Robinson:
This is in response to your letter of April 15, 1992,
requesting advice on the country of origin marking requirements
for a plastic container known as a "SUBMARIN". On April 1, 1992,
the Food and Chemical Classification Branch issued HQ 950779
regarding the classification of the merchandise. In that ruling,
you were advised for any question on the marking of the article,
you should contact the Value and Marking Branch at Customs
Headquarters. We have reviewed the country of origin marking on
the sample of the SUBMARIN you previously submitted in
connection with the classification case.
FACTS:
The merchandise at issue is a molded plastic container of a
trapezoidal shape. Placed in the upright, front-facing position,
it measures approximately 2" wide on the front, 3" wide on the
rear, 2" deep, and approximately 4 1/2" tall when closed. The
body of the container is 3 3/8" tall and the 1 1/2" tall lid
overlaps the body and rests on 7/16" tall lip. A rubber gasket
sits on the lip of the body to provide a purported water-tight
seal when the top is secured by the plastic lift locks attached
to the side of the body. An adjustable webbed nylon strap is
threaded through a clip on the rear of the body of the container.
The strap, with attached plastic clips, extends approximately
38"-enough to allow placement around the waist of most users.
The sample viewed was red and had a decal affixed diagonally
across the front panel with the word "SUBMARIN".
The promotional literature for the product states that the
purpose of the product is to permit the user to "enjoy your
favorite outdoor leisure activities without worrying about your
personal objects. "Examples of objects that can be protected
from "water, sand, shock, or theft" are "money, credit cards,
keys, cigarettes, lighter, watch, film, etc."
The sample SUBMARIN is marked on the inside of the top
surface of the lid in a little square with tiny cast-in-molded
non-contrasting raised letters which read "HECHO EN MEXICO".
The size of the marking is less than 3 point type. (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.) In your letter you inquire if the markings on the
merchandise would be sufficient for "duty free classification".
ISSUE:
Does the country of origin marking on the SUBMARIN satisfy
the requirements of the country of origin marking law for
conspicuousness and legibility?
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). C.A.D. 104
(1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. As provided in section 134.41(b), Customs
Regulations (19 CFR 134.41(b)), the country of origin marking is
considered conspicuous if the ultimate purchaser in the U.S, is
able to find the marking easily and read it without strain.
In HQ 733940, October 24, 1991, we indicated that there are
certain factors that need to be considered in determining if the
country of origin marking on an article, is conspicuous within
the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the
factors that should be considered is the size of the marking, the
location of the marking, whether the marking stands out, and the
legibility of the marking. The size of the marking should be
large enough so that the ultimate purchasers can easily see the
marking without strain. The location of the marking should be in
a place on the article where the ultimate purchaser could expect
to find the marking or where he/she could easily notice it from a
casual inspection. Whether the marking stands out is dependent
on where it appears in relationship to other print on the article
and whether it is in contrasting letters to the background. The
legibility of the marking concerns the clarity of the letters and
whether the ultimate purchaser could read the letters of the
marking without strain. No single factor should be considered
conclusive in determining whether a marking meets the
conspicuous requirement of 19 CFR 134.41 and 19 U.S.C 1304.
Instead, it is the combination of these factors which determines
whether the marking is acceptable. In some cases, a marking may
be unacceptable even when it is in a large size because the
letters are too hard to read or it is in a location where it
would not be easily noticed. In other cases, even if the marking
is small, the use of contrasting colors, which make the letters
particularly stand out, could compensate to make the marking
acceptable.
In applying these factors to the sample SUBMARIN, we note
that the very small size of the marking, less than 3 point type,
makes it difficult to see. The ultimate purchaser is likely to
have to strain to read the marking. We also note that the
country of origin marking is not in a contrasting color and does
not stand out. With respect to the location of the marking on
the SUBMARIN, we find that an ultimate purchaser is not likely to
notice the marking on the inside of the lids. Based on the
combination of these factors, we find that the country of origin
marking on the SUBMARIN does not satisfy the requirements of 19
CFR 134.41 and 19 U.S.C. 1304. Accordingly, we find that the
marking on the SUBMARIN is not acceptable.
The country of origin marking should be moved from the
inside of the lid to an outside surface of the container so that
an ultimate purchaser can find the marking easily from a casual
inspection of the SUBMARIN. The marking should also be large
enough so that it can be read without strain. We suggest that
the marking should be in at least 5 point type and if possible in
a contrasting color. If this type of marking cannot be
accomplished with cast-in-mold letters, you may use a sticker or
a decal to indicate that the article is made in Mexico. The
marking must be permanent enough to stay on the article until it
reaches the ultimate purchaser. This includes normal handling of
the article prior to its purchase.
You also inquire about the marking requirements for
merchandise classified under a subheading which is free of duty
as we found for this article in HQ 950779 (April 1, 1992). We
stated that the SUBMARIN was classified under subheading
3923.10.0000, HTSUS, and was free of duty provided that the
article is a product of Mexico. However, the fact that the
article was free of duty does not affect the requirement of 19
U.S.C. 1304 that it be marked with its country of origin.
Similarly, there are no special marking requirements for
merchandise, such as the SUBMARIN, classified under a provision
subject to a free-rate of duty.
HOLDING:
The country of origin marking on the sample SUBMARIN is not
conspicuous and legible and is not acceptable under 19 CFR
134.41 and 19 U.S.C. 1304.
Sincerely,
John Durant, Director
Commercial Rulings Division