MAR-2-05 RR:TC:SM 559977 DEC
Mr. Larry Sanchez
Sanchez Enterprises, Incorporated
1895 Phoenix Boulevard, Suite 1332
Atlanta, Georgia 30349
RE: Country of origin marking of lapel pins; ultimate purchaser;
134.1(d);
HRL 734202; HRL 734482; 19 U.S.C. 1304(a)(3)(D); 19 CFR
134.32(d);
HRL 734541; 19 CFR 134.46
Dear Mr. Sanchez:
This is in response to your letter dated July 2, 1996,
requesting a ruling on the country of origin marking requirements
of imported lapel pins.
FACTS:
Sanchez Enterprises, Incorporated, intends to import metal
lapel pins from China and/or Taiwan. The lapel pins will be
purchased from Tech Arts Industrial Company and will be entered
through the port of Atlanta. The lapel pins are custom made and
hand crafted in either soft or hard enamel. The pins are
approximately 3/4" to 1 «" in size and made of gold or silver
plated material. The pins depict custom logos of major
corporations, special events, or mascots. The pins have up to 8
pantone colors. Some pins will be used as recognition awards and
give-aways by major corporations while others are licensed with
major universities and sold in the marketplace.
You specifically question what is the proper marking of the
lapel pins when a major corporation purchases the pins to give
away to their employees in recognition of completing a training
course. The pins are to be stamped with the company name. The
pins will be individually wrapped in clear bags and then packaged
in larger bags containing 25 pins. On the outside of the bag in
which each individual pin is packaged, a sticker with the words
"Made in Taiwan" is affixed.
In addition, you inquire as to the applicable country of
origin marking requirements of licensed pins that will be sold in
the retail marketplace. Specifically, you ask whether it is
proper to indicate the country of origin and the local marketing
city on the back of the pin.
You submitted two representative samples of the pins and the
bags in which they are packaged. Each package has the words
"Made in Taiwan" prominently printed. The back of the lapel pins
contain the words "Sanchez Enterprises" and "Atlanta/Taiwan."
ISSUES:
What are the country of origin marking requirements
applicable to the lapel pins described above?
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 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 Headquarters Ruling Letter (HRL)
734202, dated November 12, 1991 (ultimate purchaser of pens given
away by companies to their clients or customers as promotional
items are the recipients); HRL 734482, dated February 12, 1992
(ultimate purchaser of pins that are given away at the time of
membership renewal is the recipient).
Regardless of whether a company purchases the lapels pins to
give to its employees after the completion of a course or an
individual purchases the pins in the retail marketplace, the
ultimate purchaser of the imported lapel pins will be the
recipient of the pin. Therefore, 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, your company does not distribute
the pins directly to the ultimate purchaser, but rather through
distributors and/or companies. Therefore, you cannot
conclusively state that the pins will in all cases remain in
their individual bags until receipt by the ultimate purchaser.
However, the fact that each pin is individually packaged in its
own plastic 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 plastic bags. Based on all
these considerations, we believe that it is very likely that the
pins will remain in their original plastic bags until receipt by
the ultimate purchaser. Accordingly, we find that the marking of
the individual polybags in lieu of the pins themselves is
acceptable. HRL 734541, dated October 8, 1992.
The next issue to consider is whether the word "Atlanta" (or
some other U.S. marketing city) that appears in small lettering
on the back of the lapel pin next to the country of origin -
"Taiwan" triggers the requirements of 19 CFR 134.46, Customs
Regulations (19 CFR 134.46). Customs has recognized that the
presence of a geographic location other than the country in which
the article was produced on an imported article or its container
may mislead the ultimate purchaser as to the true country of
origin. Therefore, in cases where the name of a location in the
United States or the name of any foreign country or locality
other than the country or locality in which the article was
manufactured or produced appears on an imported article or its
container, section 134.46, Customs Regulations (19 CFR 134.46),
provides that there shall appear, legibly and permanently, in
close proximity to such words, letters, or name, and in at least
a comparable size, the name of the country of origin preceded by
"Made in", "Product of", or other words of similar meaning.
Customs has ruled that in order to satisfy the close proximity
requirement, the country of origin marking must appear on the
same side(s) or surface(s) in which the name of the locality
other than the country of origin appears. The purpose of this
section is to prevent the possibility of misleading or deceiving
the ultimate purchaser as to the actual origin of the imported
good.
Here, although the lapel pins may contain a reference to a
locality other than the actual country of origin, the plastic bag
in which the samples are contained are conspicuously marked in
all capital letters "MADE IN TAIWAN." In the context in which
the letters appear on the plastic bag, we find that the
conspicuous marking on the plastic bag obviates the likelihood
that an ultimate purchaser would be misled or deceived as to the
country of origin of the imported article by the reference in
small lettering to a U.S. city on the back of the lapel pin.
Accordingly, we find that the special marking requirements of 19
CFR 134.46 are not triggered, and that the marking "MADE IN
TAIWAN" on the plastic bags satisfies the general requirements of
permanency, legibility, and conspicuousness under 19 U.S.C. 1304
and 19 CFR Part 134.
HOLDING:
The proposed country of origin marking on the submitted
sample lapel pins, as described above, satisfies the country of
origin marking requirements provided the port director at the
port of entry is satisfied that the articles will reach the
ultimate purchasers in a properly marked plastic bag.
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