MAR 2-05 CO:R:C:V 732082 LR
District Director of Customs
Seattle, Washington
RE: Country of Origin Marking Requirements for Imported
Samples used to Solicit Orders of Foreign Merchandise
Dear Sir:
This is in response to your request for internal advice,
dated September 21, 1988 (IA 50/88), regarding the country of
origin marking requirements of imported samples used for the
solicitation of orders.
FACTS:
The imported samples will not be sold, distributed or given
away, but will be used by the importer for the solicitation of
orders for foreign merchandise. According to your memorandum,
some ports require these items to be marked with the country of
origin while others except these from marking pursuant to 19
U.S.C. 1304(a)(3)(F). The basis for requiring marking on the
sample is that the person who is having his or her business
solicited should be advised of the country of origin of the
merchandise he or she is about to order. For the sake of
uniformity, you ask that we rule on the marking requirements
applicable to these articles.
ISSUE:
Whether articles which will used only for the solicitation
of orders for foreign merchandise and will not be sold,
distributed or given away are excepted from country of origin
marking.
- 2 -
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19
U.S.C. 1304), provides, in general, that all articles of foreign
origin imported into the U.S. must be legibly, conspicuously and
permanently marked to indicate the English name of the country of
origin to an ultimate purchaser in the U.S. There are, however,
certain exceptions to the general rule. Among the exceptions are
19 U.S.C. 1304(a)(3)(D) which provides that articles for which
the marking of the containers will reasonably indicate the origin
of the articles need not be marked, and 19 U.S.C. 1304(a)(3)(F)
which provides that articles imported for use by the importer and
not intended for sale in their imported or any other form need
not be marked. The implementing regulations to 19 U.S.C. 1304
are set forth in Part 134, Customs Regulations (19 CFR Part 134).
For an exception to be granted under 19 U.S.C.(a)(3)(D),
the articles must reach the ultimate purchaser in a properly
marked container and the container must reach the ultimate
purchaser unopened.
Section 134.1, Customs Regulations, defines ultimate
purchaser as generally the last person in the U.S. who will
receive the article in the form in which is was imported
(emphasis added). Although this regulation makes clear that the
person may "receive" the article either by purchase or by gift,
the person must nonetheless receive it.
In this case, the imported articles will be neither sold,
distributed, nor given away. Instead, the importer will use them
as samples to be shown to prospective customers to solicit sales
of similar items. After examination of the samples, the
prospective customer would be expected to return them to the
salesperson. In these circumstances, we find that the
prospective customer does not "receive" the imported article
within the meaning of 19 CFR 134.1 and is not properly considered
the ultimate purchaser. Instead, the ultimate purchaser is the
importer that uses the imported samples to solicit orders. See
Legal Determination 79-0382 (HQ 710493, July 17, 1979), (the
ultimate purchaser of dinnerware distributed by airlines in-
flight for use by passengers was the airline and not the
passenger because the passengers will not keep the dinnerware,
but will return it to the airline company after usage).
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Based on our determination that the importer is the
ultimate purchaser, we find that the imported samples are
excepted from individual marking pursuant to 19 U.S.C.
1304(a)(3)(D) provided Customs officers at the port of entry are
satisfied that the imported articles will be used only in the
manner described above and that the importer will receive them in
their original unopened cartons that are marked to indicate the
country of origin.
We also find that articles in question fall within the 19
U.S.C. 1304(a)(3)(F) exception pertaining to articles imported
for the use of the importer and not intended for sale. We are of
the opinion that the importer is "using" the imported samples by
showing them to prospective customers in order to solicit orders.
To a person in the sales business, the samples are the tools of
the trade. (See HQ 709199, June 28, 1978, in which articles
imported for showroom display or for testing purposes were
similarly considered for use by the importer within the meaning
of 19 U.S.C. 1304(a)(3)(F)). Of course, the exception would not
apply if the samples themselves were to be sold.
To summarize, we conclude that the imported samples may be
excepted from marking under either 19 U.S.C. 1304(a)(3)(D) or
(F).
While we agree with your comment that the prospective
customer who is having his or her business solicited may want (or
need) to know the country of origin of the merchandise he or she
is about to order, the provisions of 19 U.S.C. 1304 simply do not
require disclosure of this information. The statute only
requires that merchandise actually imported be marked to indicate
the country of origin to the ultimate purchaser. As indicated
above, since we do not consider the prospective customer to be
the ultimate purchaser of the samples, the samples are not
required to be marked. Of course, the prospective purchaser
would be considered the ultimate purchaser of any merchandise
that is actually ordered and each of these items would be subject
to marking at the time of importation. (Similarly, while a
prospective purchaser of mail order merchandise may also want to
know the country of origin of the merchandise he or she is about
to order, 19 U.S.C. 1304 does not require the disclosure of this
information in the catalogue. This type of information is
required, however, under the Textile Fiber Identification Act (15
U.S.C. 70, as amended). As a practical matter, even if the
samples were marked with their country of origin, this would not
necessarily inform the prospective purchaser of the country of
origin of the merchandise actually ordered, which may differ from
that of the samples.
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Although the above-described samples are excepted from
country of origin marking under the provisions of 19 U.S.C. 1304,
if the imported samples are textile fiber products subject to the
requirements of the Textile Fiber Identification Act, or wool
products subject to the requirements of the Wool Labeling Act of
1939, as amended (15 U.S.C. 68 et seq.), under the rules and
regulations issued by the Federal Trade Commission (FTC) under
these Acts, the imported samples, as well as the products
themselves, are required to be marked (subject to specified
exceptions) with their respective fiber contents and other
required information, including country of origin. (See 16 CFR
303.21 and 300.22). Pursuant to sections 11.12 and 11.12b,
Customs Regulations (19 CFR 11.12 and 11.12b), the Customs
Service is responsible for the enforcement of the labeling
requirements of these Acts at the time of importation. If you
have any questions regarding the interpretation of the FTC rules
and regulations, the FTC should be contacted.
HOLDING:
Imported articles that are to be used by the importer only
as samples to solicit orders of merchandise and are not otherwise
for sale or distribution, may be excepted from marking under
either 19 U.S.C. 1304(a)(3)(D) or (F).
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: Chief, NIS Branch 3
New York Seaport
cc: MAR 2-05 CO:R:C:V LRODBART