MAR-2-05 CO:R:C:V 733965 GRV
John P. Donohue, Esq.
Donohue and Donohue
Fifth Floor, The Bank Building
421 Chestnut Street
Philadelphia, PA 19106
RE: Country of origin marking of leather watch straps. 19 CFR
134.11; article marking; primary method of marking article
(hot foil in contrasting colors and cold stamping in same
color); conspicuousness; 19 CFR 134.41; repacked articles;
container marking; 19 CFR 134.34; 19 CFR 134.32(d);
secondary marking; 19 CFR 134.26; degree of visibility/
legibility (print size and type); typography
Dear Mr. Donohue:
This is in response to your letters of November 25, 1990,
and March 8, 1991, on behalf of Regal Industries, requesting a
country of origin marking ruling regarding certain leather watch
straps. Samples of leather watch straps were submitted for
examination.
FACTS:
Prior to July of 1989, Regal imported leather watch straps
from Hong Kong, China and Thailand, as follows: leather watch
straps, each cold stamped on its back with its country of origin,
were bulk shipped in crates to the U.S. (You indicate that cold
stamping is a post-manufacturing method of marking that leaves a
non-inked impression on the article in the same color as the
article itself). After entry, the merchandise was variously
distributed: approximately 95% of the watch straps were
individually packaged for retail sale, and the remaining 5% were
sold to watch repairers without being packaged. The watch straps
that were individually packaged were placed on felt paper backing
material and encased in a clear plastic container. Because the
initial, cold stamp marking was obscured by this packaging
method, the country of origin was secondarily denoted on a small
paper label--measuring approximately one by one and half inches--
that was placed on the inside front of the plastic container.
This paper label contained other product/consumer information,
all of which was printed in larger print sizes and heavier print
types than the country of origin marking was printed in: the
brand name of the merchandise is printed in approximately 8-point
(a point is a unit of type measurement equal to 0.01384 inch or
nearly 1/72 in., and all type sizes are multiples of this unit),
boldface print and the retail price of the watch strap is printed
in approximately 13-point, boldface print, whereas the country of
origin marking is printed in 3-point, lightface print, which is
hard to read. (For an understanding of the print size/type terms
referenced here, see the entry under "Type (printing)" in volume
18 of McGraw-Hill Encyclopedia of Science & Technology (6th ed.,
1987), or the entry under "Printing" (in pre-1985) or "Printing,
Topography and Photoengraving" (printings since 1985) in volume
14 of The New Encyclopaedia Britannica (15th ed., 1975)).
Starting in July of 1989, Customs officers informed you that
the merchandise was not legally marked and marking notices were
issued. You state that the Customs officers required Regal to
adopt the following marking scheme: (1) hot foil stamp the watch
straps, which marks the merchandise in contrasting colors;
(2) place gummed labels on the back of all watch straps; and,
(3) enlarge the size of the country of origin designation on the
paper labels in the clear plastic containers. You believe that
some of these marking instructions are onerous and request that
we rule on the following proposed marking method(s) for future
entries: (1) exempting those imported watch straps which will be
repackaged in clear plastic containers with a paper label
indicating the country of origin of the particular watch strap;
and, (2) exempting those imported watch straps which will not be
packaged, but will be sold to watch repairers and have adhesive
labels in contrasting colors affixed to the back surface of the
watch straps; or (3) approving the pre-1989 marking program of
cold stamping the country of origin on the backs of all the
imported watch straps.
Customs import specialists have indicated that the reasons
for the marking changes were two-fold. First, it was believed
that the initial cold stamp method of marking the country of
origin on the imported leather watch straps and the printing of
the country of origin on the paper label for the packaged watch
straps in the smallest print size and lightest print type
employed to print the various consumer/product information on the
paper label presented legibility/visibility and conspicuousness
problems for the ultimate purchaser. Second, because the
imported watch straps were variously distributed--to watch
repairers without packages (5%) and to stores in individual
retail packages (95%), and Customs was unable to determine which
5% of the imported watch straps would not be packaged for retail
sale, a back up or secondary marking of all the watch straps was
deemed appropriate. Thus, to ensure that all watch straps were
adequately marked regardless of which market--packaged or not--
your client chooses to distribute the watch straps in, the
marking changes were prescribed.
Regal has instituted some of the marking changes proscribed
so that the leather watch straps are currently imported with
their respective country of origins hot foil marked (also a post-
manufacturing method of marking, however, one which leaves the
article marked in contrasting colors) on their backs at the tip
of the overlaying strap. However, while the country of origin
marking on the leather strap sample submitted--printed in
approximately 6-point type--is highly visible and enables the
consumer to read it without strain when seen, its location--at
the tip of the overlaying strap--renders its conspicuousness less
than easy to find, as the underlying strap obscures the tip of
the overlaying strap when a consumer turns the strap over to view
the marking. The print size and type employed to denote the
country of origin marking on the paper labels has not been
changed; it is still printed in the smallest print size and
lightest print type on the label.
ISSUES:
I. Regarding the initial country of origin marking of all the
bulk shipped leather watch strap articles, whether the hot
foil method of marking each leather watch strap on its back
in contrasting colors at the tip of the overlaying strap
comply with the marking requirements of 19 U.S.C. 1304.
II. Regarding the secondary country of origin marking of the
repackaged leather watch strap articless, whether the print
size and type employed on the paper label to denote the
country of origin of the retail-packaged leather straps is
sufficient to meet the conspicuous and legibility
requirements of 19 U.S.C. 1304.
LAW AND ANALYSIS:
The marking statute, section 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 purchaser 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
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 CCPA 297, 302, C.A.D. 104 (1940). The clear language of
section 1304 requires 'conspicuous' marking, and to this end
section 134.41, Customs Regulations (19 CFR 134.41), 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.
Regarding the initial country of origin marking of all the
leather watch straps
Concerning the condition of the bulk shipped leather watch
straps at their time of importation, based on an examination of
the sample leather watch strap submitted, we find that the hot
foil stamping method of marking the leather straps is legible in
that the resulting contrasting colors are easy to read, once they
are located. However, we do not find that the location of the
marking--on the tip of the overlaying strap of the buckled watch
strap, is conspicuous, as the ultimate purchaser cannot merely
turn the watch strap over to locate the marking. Rather the
ultimate purchaser must unbuckle the watch strap to find the
country of origin marking in the first instance. Accordingly,
the leather watch straps are not deemed to be marked in a manner
that fully meets the marking requirements of 19 U.S.C. 1304, in
that the location of the country of origin marking is not easy to
find. However, if the location of the hot foil marking is moved
to some other part of the watch strap backs, away from where the
straps overlay each other as a result of being buckled together,
then the merchandise would be marked in compliance with the
marking requirements of 19 U.S.C. 1304.
As the initial, hot foil marking scheme, modified as to its
location on the leather strap as indicated above, is sufficient
to meet the "conspicuous" and "legibility" requirements of the
marking statute, the need to affix gummed labels on the backs of
all the watch straps is obviated. Accordingly, we do not address
your second and third marking proposals--calling for exempting
those imported watch straps which will not be packaged because
they will have adhesive labels affixed to the back surfaces and
approving the pre-1989 marking program, as these marking
proposals were instituted over concerns regarding the
conspicuousness of the cold stamp marking, which have now been
addressed.
Regarding the secondary country of origin marking of the
repackaged leather watch straps
Concerning certain articles that are repacked after
importation, section 134.34, Customs Regulations (19 CFR 134.34),
provides, in part, that:
[a]n exception under section 134.32(d) may be authorized in
the discretion of the district director for imported
articles which are to be repackaged after release from
Customs custody under the following conditions:
(1) The containers in which the articles are repacked
will indicate the origin of the articles to an
ultimate purchaser in the United States.
(2) The importer arranges for supervision of the
marking of the containers by Customs officers at
the importer's expense or secures such verifica
tion, as may be necessary, by certification and
the submission of a sample or otherwise, of the
marking prior to the liquidation of the entry.
(Emphasis supplied).
This exception to the marking requirements, however, is available
only to merchandise which will be repacked after importation into
containers which will be marked to reasonably indicate the origin
of the articles to the ultimate purchasers. 19 CFR 134.32.
Because the merchandise in this case will not be uniformly
repacked--some (5%) will be sold without being packed, this
exception cannot apply to those watch straps which will not be
repacked into marked containers and they must be legally marked
at the time of importation. Further, this marking exception is
applicable to those watch straps which will be repacked into
marked containers only if they can be identified and segregated
from those which will not be repacked at the time of importation.
It does not appear that this condition is met in the present
case. Thus, concerning your first proposed marking scheme to
exempt those imported watch straps which will be repacked after
importation, you must present this marking proposal to the
district director of the port of importation for his/her
approval.
Regardless of the applicability of section 134.34, section
134.26, Customs Regulations (19 CFR 134.26), also relates to
imported articles that are repacked or manipulated, and similarly
provides, in part, that:
[i]f an article subject to these requirements is intended to
be repacked in retail containers (e.g., blister packs) after
its release from Customs custody, or if the district
director having custody of the article, has reason to
believe such articles will be repacked after its release,
the importer shall certify to the district director that:
(1) [i]f the importer does the repacking, he shall not
obscure or conceal the country of origin marking appearing
on the article, or else the new container shall be marked to
indicate the country of origin of the article in accordance
with the requirements of this part; ....
Thus, regarding those leather watch straps that will be repacked,
assurances must be given to the district director, in the form of
the written certification statement provided for at section
134.26, that the country of origin marking will not be obscured
or concealed by the repackaging operation.
Lastly, we address the issue of whether the country of
origin marking on the paper label of the retail-packaged watch
straps is sufficient to meet the conspicuousness requirement of
19 U.S.C. 1304. Initially, we note that the concept of conspicu-
ousness embraces two concerns: (1) visibility, which addresses
the requirement that the marking must be able to be found easily,
and (2) legibility, which addresses the requirement that the
marking must be able to be read without strain. We also note
that, in general, information presented in boldface print and/or
a large print size tends to draw the ultimate purchaser's atten-
tion away from other information that is presented in lightface
type and/or a smaller print size. Lastly, we note that the
country of origin marking should be presented in format that is
conspicuous: made readily apparent, 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.
In this case, given that various print sizes and types are
employed to denote various information on the paper label and
that the country of origin marking is presented in the lightest-
face print and that the size of the marking is very small (3-
point type), we find that the country of origin marking is not
easy to read and that it does not comply with the marking
requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b). We suggest
that the print size of the country of origin marking on the paper
label be enlarged to at least a 5-point type and that it be in
sufficient boldface print so that it is easy to read.
HOLDING:
Based on the information presented and after viewing the
samples submitted, the bulk shipped leather watch straps that are
initially hot foil marked with their respective country of
origins on the back of the over laying strap at the tip are not
properly marked for purposes of the marking statute, because the
marking is not in a conspicuous (easy to find) location.
Although the marking is legible, the location of the marking must
be moved away from the tip of the buckled strap so that it is
readily apparent to the ultimate purchaser.
The repacked watch straps that have their respective country
of origins secondarily denoted in 3-point, lightface print on
paper labels that are inserted into the clear containers do not
satisfy the requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b).
Concerning the issue of whether the imported leather watch
straps may be exempt from the marking requirements under section
134.34, Customs Regulations (19 CFR 134.34), because some (95%)
will be repacked, the district director of the port where the
merchandise will be imported has the discretion to authorize
this marking exception. If you believe the transaction qualifies
for this article exemption, you must present this marking
proposal to the district director for his/her consideration.
Sincerely,
John Durant, Director
Commercial Rulings Division