MAR-2-05 CO:R:C:S 735466 RC
District Director
P.O. Box 9516
El Paso, Texas 79985
RE: Internal Advice Request No. 103/93; Country of Origin
Marking of Appliances; 19 CFR 134.32(d); 19 CFR 134.46;
Conspicuous; Container Marking
Dear sir:
This is in response to your memorandum of November 30, 1993,
forwarding a request for internal advice from Mr. Jacquez, on
behalf of Hamilton Beach/Proctor Silex, Inc., concerning the
country of origin marking requirements for appliance packaging.
His letter was forwarded to us by the National Import Specialist
in New York without samples. Per our request, the importer
submitted sample packages on July 27, 1994.
FACTS:
Hamilton Beach/Proctor-Silex, Inc., imports various small
appliances. They are made or assembled in Mexico for sale in the
U.S. You have submitted sample retail packaging for three
appliances: a Proctor-Silex iron, popcorn "pumper", and
coffeemaker. The submitted packaging samples are marked "Made in
Mexico" on the bottom panels and on two side panels where
references to U.S. locales (domestic addresses) appear. The iron
box is slightly smaller than a shoe box, the "pumper" box is
about the size of a shoe box, and the coffeemaker box is about
double the size of a shoe box (less easy to handle). All of the
country of origin markings appear in lettering of approximately 9
points or more. (A point is a unit of type measurement equal to
0.01384 inch or nearly 1/72 inch, and all type sizes are
multiples of this unit.) The appliances are sold to large, major
retail chains and displayed on shelves without the containers.
ISSUES:
1) Whether the country of origin marking is conspicuous.
2) Whether the requirements of section 134.46, Customs
Regulations, are satisfied.
3) Whether the retail container may be excepted from marking
because a marked appliance will be on display.
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 will permit, in such a manner as to indicate to the
ultimate purchaser in the United States the English name of the
country of origin. Part 134, Customs Regulations (19 CFR part
134) implements the regulations of 19 U.S.C. 1304.
The "ultimate purchaser" is generally defined, in section
134.1(d), Customs Regulations (19 CFR 134.1(d)), as the last
person in the United States who will receive the article in the
form in which it was imported.
Section 134.41(b) states that a marking should be at least
sufficiently permanent to insure that, in any reasonably
foreseeable circumstance, the marking shall remain on the article
or its container until it reaches the ultimate purchaser. The
ultimate purchaser in the U.S. must be able to find the marking
easily and read it without strain.
A conspicuous marking has various characteristics, two of
which are (1) visibility; that is, it must be readily apparent,
and (2) legibility; that is, it must be readable without strain.
Another quality of a conspicuous marking is format; that is, the
ultimate purchaser must be able to readily ascertain where the
goods were produced.
We find that the facts in the instant case are directly on
point with the facts we ruled upon in HQ 734648 (July 14, 1992).
As we stated in that case, Customs generally does not consider a
marking appearing on the bottom of a container to be in a
conspicuous location. Merely marking the bottom in the instant
case would be insufficient. However, since two sides of each box
are also marked "Made in Mexico," the ultimate purchaser can
readily ascertain the country of origin. Regarding the submitted
samples, one notes that all the "Made in Mexico" markings are
permanent, legible, and indelible. Therefore, the requirements
of section 134.41 are satisfied.
Your decision to include U.S. addresses on the boxes invokes
the provisions of section 134.46. Under section 134.46, in any
case in which the words "U.S." or "American," or the letters
"U.S.A.," any variation of such words or letters, or the name of
any city or locality in the U.S., or the name of any foreign
country or locality other than the country or locality in which
the article was manufactured or produced, appear on an imported
article or its container, 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.
Applying the requirements of section 134.46, the foreign
marking and the U.S. address are printed clearly, in equivalent
dimension, on the boxes. The permanence requirement is satisfied
by printing the markings directly on the box. Regarding the
close proximity requirement, if one looks on the panels of the
package where the U.S. references appear, the U.S. address and
the "Made in Mexico" markings are adjacent. The close proximity
requirement is met because both the foreign marking and the U.S.
address can be seen on the same side or panel of the box. There
is no need for the ultimate purchaser to strain or to turn the
box to see both the foreign marking and the U.S. address at the
same time. The requirements of section 134.46 are satisfied.
The importer asks that the retail container of the
appliances be excepted from marking because an appliance will be
on display and the ultimate purchaser will not see the box until
the purchase is already made. We will not allow the retail box
to be excepted from marking for the following reasons: (1)
samples of marked appliances or their photographic depictions
were not submitted for our review; (2) the appliances are sold to
retail chains and Customs cannot supervise their display; (3)
there is no way to be sure that the displayed appliances will be
made and marked to indicate the same country as the boxed
appliances; (4) the importer has not stated whether or not the
retail boxes are sealed containers or normally opened by the
ultimate purchaser; (5) lastly, we are not convinced that the
expensive retail packaging will not be seen by the ultimate
purchaser before the sale. It is reasonable to assume that the
appliances will remain in the unopened retail boxes because the
packaging provides all the product information. The pictures on
the boxes clearly show that the container was designed to be seen
by the ultimate purchaser before the sale.
HOLDING:
We find that the sample packages must be marked to indicate
the country of origin of the appliances contained therein. The
sample packages as marked satisfy the country of origin marking
requirements as set forth in 19 U.S.C. 1304. This ruling is
limited to appliances imported in packaging which conforms to the
packaging samples submitted.
This decision should be mailed by your office to the
internal advice requester no later than 60 days from the date of
this letter. On that date, the Office of Regulations and Rulings
will take steps to make the decisions available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director