MAR-2-05 CO:R:C:V 735111 RSD
Mr. John C. Herrea
John C. Herrea, Inc.
9815 West Lawrence Avenue
Schiller Park, Illinois 60176
RE: Country of origin marking for parts of ball point pens and
fountain pens which will be assembled into complete pens in the
U.S.; substantial transformation; conspicuous; legibility,
marking after importation; certification; 19 CFR 134.35; 19 CFR
134.41; 19 CFR 134.34
Dear Mr. Herrea:
This is in response to your inquiry on behalf of Autopoint,
Inc., directed to the New York Seaport, concerning the country of
origin marking requirements for imported pen components which
will be assembled into complete pens in the United States. The
National Import Specialist forwarded your request to Customs
headquarters for a response. On April 14, 1993, the Food and
Chemicals Classification Branch issued HQ 952850 concerning the
classification of this merchandise. Samples consisting of one
assembled fountain pen, one assembled ballpoint pen, and the
seven parts of one unassembled ball point pen were submitted with
your inquiry.
FACTS:
Autopoint plans to import seven different pen parts,
consisting of a plastic cap, a barrel, a clip, a metal spring, a
ball-point ink cartridge, and buttons from Germany. Each
component will be shipped in bulk lots of 1,000 pieces, packaged
in bags or boxes. In the United States, Autopoint will imprint
the caps and barrels with advertizing messages, assemble the
parts into complete pens, and ship the finished pens to its
customers. The assembled pens are available in various color
combinations drawn from nine different colors.
The only components that bear a country of origin marking
are the clips and the ink cartridges. The country of origin
marking on the clips, "W. Germany", appears in non-contrasting,
cast-in-mold letters of approximately 1/16th of an inch. This
marking is not very clear and is not easily observed from a
causal inspection of the completed pen. The word "Germany" is
also stamped in non-contrasting colors of the same size on the
surface of the ink cartridge, an interior component of the pen.
Autopoint has proposed to re-mark the completely assembled
pens after importation by imprinting them with the country of
origin at the same time the advertising message is printed on the
pens. On the sample ball point pen, the country of origin
marking is printed on the lower portion of the cap surface in
contrasting color letters of approximately 1/16th inch size. The
fountain pen is marked in the same manner, but the country of
origin is located on the lower surface of the barrel.
Autopoint claims that practical problems prevent it from
putting on a larger country of origin marking on the pen
components prior to importation. They claim that the plastic
pieces will not release from the molds if the letters of the
cast-in-mold country of origin marking were made larger. They
also state that it would be expensive and wasteful to have to
imprint the pens before importation with the country of origin
and again after importation with an advertising message.
ISSUE:
Can the country of origin marking be applied to the pens by
the importer after importation, if the pen components are marked
with the country of origin in cast-in-mold letters at the time of
importation, but perhaps not in a manner which is sufficiently
legible and/or conspicuous?
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. 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.
Further work or material added to an article in another country
must effect a substantial transformation in order to render such
other country the "country of origin" within the meaning of the
marking laws and regulations. The case of U.S. v. Gibson-Thomsen
Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an
article used in manufacture which results in an article having a
name, character, or use differing from that of the constituent
article will be considered substantially transformed and that the
manufacturer or processor will be considered the ultimate
purchaser of the constituent materials. In such circumstances,
the imported article is excepted from marking and only the
outermost container is required to be marked (see section 134.35,
Customs Regulations).
In another case involving the marking requirements for
imported pens, Customs ruled that the simple assembly of foreign
pen components in the U.S. was not a substantial transformation.
See HQ 734053 (September 21, 1991). Similarly, upon review of
the sample pen parts and the completed pens, we find that the
assembly operations to make these finished pens involve minimal
processing of the foreign components. Most of the components are
screwed, snapped, or simply placed together. The imprinting of
advertising messages is also not a substantial transformation.
(See HQ 731779 (December 9, 1988) holding that the printing of
advertising information on wooden pens shaped like baseball bats
was not a substantial transformation.) Accordingly, we find in
this case that the foreign components are not substantially
transformed by the domestic processing and the pens must be
marked as a product of Germany. The fact that in some cases each
shipment may not include all the parts for completed pens is not
material for purposes of country of origin marking. What is, is
that in every case, every part is German.
Under your proposal, as imported, the pens will be marked
with their country of origin in tiny letters in a non-contrasting
color on the clips. This marking by itself is not sufficiently
conspicuous. In HQ 733940 (October 24, 1991), involving the
country of marking of pens, 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 pen where the ultimate purchaser could expect to find the
marking or where he/she could easily notice it from a causal
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 by itself 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 pens, we note that
the letters of the marking are in a non-contrasting color and
they are not clearly molded into the plastic clip. The size of
the marking, less than a 1/16th of an inch, is also tiny. The
marking is difficult to see and must be held up to a light to be
read. Considering the totality of the factors for
conspicuousness and legibility, we believe that the country of
origin cast-in-mold marking on the plastic clips will not be
noticed from a causal inspection of the pens and that it cannot
be read without strain. Accordingly, the marking on the plastic
clip of the pens is not sufficiently conspicuous and legible to
satisfy the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.
Recognizing that the marking molded into the clip may not be
sufficient to satisfy the requirements of 19 U.S.C. 1304, you
request permission to print a country of origin marking on the
pens at the same time that the pens are printed with an
advertising message. This marking will be on the pens before
they reach the ultimate purchasers.
Each sample assembled pen has the additional country of
origin marking printed on them. The letters of the marking are
printed on the sample pens in clear letters of a contrasting
color to their background. We find that this marking is easy to
read and can be noticed from a casual inspection of the pens.
Because this country of origin marking will be put onto the
pens after importation the procedures set forth in 19 CFR 134.34
should be followed.
19 CFR 134.34 provides that an exception under 19 CFR
134.32(d) may be authorized in the discretion of the district
director for imported articles which are to be repacked 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 Custom officers at the importer's expense
or secures such verification, as may be necessary, by
certification and the submission of a sample or otherwise,
of the marking prior to the liquidation of the entry.
In HQ 735292 (September 21, 1993), Customs indicated that
although the above provision sets forth the procedures to be
followed when unmarked imported articles are to be repacked into
marked containers after importation, we believe these procedures
are also appropriate in the present situation. The purpose of
these procedures is to ensure that articles which are not
adequately marked at the time of importation due to practical
problems are properly marked after importation. In this case, we
believe that due to the nature of plastic molds and the cost of
printing the pens twice, that such practical problems exist in
marking the pens prior to their importation.
HOLDING:
The cast-in-mold lettering on the clip of pens is not
conspicuous and legible. The country of origin marking printed
on the sample pens is sufficiently legible and conspicuous to
satisfy the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.
The importer's proposal to print the country of origin of the
pens at the same time the advertising message is printed on the
pens is acceptable if approved by the district director and the
procedures set forth in 19 CFR 134.34 are followed.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: Area Director N.Y. Seaport
N.I.S. Division
David Griffiths
Autopoint, Inc.
208 Water St.