MAR-20-5 CO:R:V:C 734063AT
Robert L. Follick, Esq.
225 Broadway
Suite 500
New York, New York 10007
RE: Country of origin marking requirements of unsealed
containers used as gift boxes containing various imported
merchandise which itself is legibly, permanently and
conspicuously marked with the country of origin and distributed
to the ultimate purchaser as goodwill gifts; 19 CFR 134.24(d)
Dear Mr. Follick:
This is in response to your letter of February 28, 1991,
requesting a ruling on the country of origin marking requirements
of unsealed containers used as gift boxes of various imported
merchandise which itself are legibly, permanently and
conspicuously marked with the country of origin and distributed
to the ultimate purchaser as goodwill gifts.
FACTS:
Your client, Crown Herald Inc., is a domestic company which
intends to purchase and import for resale foreign produced
articles such as but not necessarily limited to desk sets,
clocks, letter openers, desk caddies, thermoses, etc.
Photocopies of the representative articles were submitted along
with the letter. You state that you are informed by Crown
Herald that the individual articles are each permanently,
conspicuously and legibly marked with the country of origin
"Germany" at the time of importation. When imported, the
articles are packaged in what are referred to as "gift boxes"
which are not marked and which are not sealed. Following
importation, Crown Herald at the direction of its customers,
monograms and/or imprints the product with the customer's name,
logo, etc. The imported product is then sent to the customers
who use the products as gifts.
A sample of the unsealed container referenced as a "gift
box" has also been submitted. The sample is a cardboard and
styrofoam box which is unsealed and does not contain any
indication of the country of origin of the contents. The sample
also has fold-out tabs which allows it to be easily opened by the
recipient of the gift.
ISSUE:
Do the unsealed containers used as gift boxes have to be
marked with the country of origin if the articles themselves are
marked?
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).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR
134.41(b)), mandates that the ultimate purchaser in the U.S. must
be able to find the marking easily and read it without strain.
Section 134.1(d)(4), Customs Regulations (19 CFR 134.1(d)(4)),
provides that if an article is imported and distributed as a gift
the recipient is the "ultimate purchaser."
The marking requirements for unsealed disposable containers
of imported merchandise are set forth in section 134.24(d),
Customs Regulations (19 CFR 134.24(d)). This section provides
that "if the container is normally opened by the ultimate
purchaser prior to purchase, only the article need be marked."
In HQ 732271 (April 27, 1990), Customs ruled that unsealed
cartons containing properly marked crystal giftware do not have
to be marked with the country of origin because pieces of crystal
giftware are articles that an ultimate purchaser would normally
remove from the carton to examine prior to purchase. We noted
that a number of factors must be considered in determining if the
article involved is something that the ultimate purchaser would
take out of its carton to look at prior to purchase. Some of
these factors are:
1. Whether a prospective purchaser will want to remove the
article from its container to inspect it to find out
exactly what he or she may be buying; and
2. Whether the article is the type which a prospective
purchaser would be likely to remove from its container
in order to examine it prior to purchase to see if it
was broken or chipped.
We also noted that crystal glassware is the type of article
likely to be on display in the store and that in the unlikely
event the ultimate purchaser does not open the carton prior to
purchase, he or she would see the country of origin marking on
the display item.
In this case, the imported merchandise is distributed as
gifts. In accordance with 19 CFR 134.1(d)(4) the recepient of
the gift is the ultimate purchaser. Because the donee is not
purchasing the giftware, the criteria set forth in the above
crystal ruling does not apply. Nonetheless, we find that the
unsealed boxes in which the giftware is distributed is not
required to be marked to indicate the country of origin of the
contents. The gift box is unsealed and can be easily opened by
the recipient at the time the gift is received whereupon the
country of origin will be revealed.
HOLDING:
The unsealed gift boxes described above, containing various
imported merchandise that itself is properly marked with the
country of origin and purchased for the sole purpose of being
given as gifts do not have to be marked with the country of
origin of the contents.
Sincerely,
John Durant, Director
Commercial Rulings Division