CLA-2 R:C:S 559267 MLR

Robert L. Follick, Esq.
Follick & Bessich, P.C.
225 Broadway, Suite 500
New York, NY 10007

RE: Country of Origin Marking on Ceramic Coffee Canisters; Containers; Cardboard box; Marking Exception; 19 CFR 134.46; 19 CFR 134.32(d); 19 CFR 134.36(b); revocation

Dear Mr. Follick:

This is in reference to your letter of June 15, 1995, requesting reconsideration of New York Ruling Letter (NYRL) 809408 dated May 17, 1995, on behalf of Jayme Products, concerning a country of origin marking exception for certain ceramic coffee canisters. A sample was submitted with your request. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter "section 625), notice of the proposed revocation of NYRL 809408 was published September 13, 1995, in the Customs Bulletin, Volume 29, Number 37.

FACTS:

Jayme Products is the importer of ceramic coffee canisters which are sold exclusively by mail order either as a promotional item to first time coffee purchasers, or by mail order offered from a General Foods catalogue. In all instances, it is stated that the canisters are distributed to the ultimate purchaser directly by mail packed in an original sealed cardboard box in which the canister is imported. The canisters are never sold as open stock or without its packaging.

The sample canister is packed in a white cardboard box which itself is packed in a mailing carton. The front side panel of the cardboard box has an open panel so that the canister with the words "Gevalia Kaffe" is visible upon opening the mailing carton. (The canister does not contain any coffee.) Affixed to the side panel of the cardboard box (the bottom of the white cardboard box as the canister is lying in the mailing carton) is a label measuring 2 x 1 1/8 inches, with the marking "Made in Taiwan." Inside the cardboard box, the canister is secured by two pieces of styrofoam placed at the top and bottom. After removing the canister from the white cardboard box, the words "By Appointment to His Majesty The King of Sweden" become apparent on top of the canister.

ISSUE:

Whether the ceramic coffee canisters may be excepted from marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), provided the cardboard box containing the canister, which itself is packed in a mailing carton, is marked with the country of origin of the canister.

LAW AND ANALYSIS:

The marking statute, section 304, 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 in the U.S. 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.

Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d), Customs Regulations {19 CFR 134.32(d)}, an exception from individual marking is applicable where the marking of the container of an imported article will reasonably indicate the origin of the article. This exception is normally applied in cases where the imported article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser in the U.S. will receive it in its original marked container.

In NYRL 809408, it was determined that the reference "By Appointment to His Majesty The King of Sweden" on the top of the canister invoked 19 CFR 134.46, which requires that in cases where the name of a location other than the country in which the article was produced appears on the 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. Therefore, NYRL 809408 held that the country of origin marking "Made in Taiwan" must appear on the side or panel of the canister that makes reference to the country of "Sweden."

In this case, it is claimed that the provisions of 19 CFR 134.46 are not triggered and that NYRL 809408 did not consider that the canisters are only distributed by mail. Therefore, an exception from marking the canister is requested because the cardboard box will be marked with the country of origin of the canister packed therein, and since the canister is solely distributed by mail, the ultimate purchaser will see the country of origin on the cardboard box. In your submission to the New York Seaport, you cite Headquarters Ruling Letter (HRL) 734529 dated April 13, 1992, where Customs held that 12 golf balls packed in four sleeves, three balls per sleeve, inside a remailer box marked with a sticker labeled "Made in Taiwan" and sold directly to the retail customer were excepted from individual marking so long as the district director was able to determine that the items would only be sold in this manner.

Customs has consistently held that in those cases in which reference to a place other than the country of origin is made on an imported article, but such reference would not confuse the ultimate purchaser, the requirements of 19 CFR 134.46 are not triggered. Furthermore, Customs has determined that the special requirements of 19 CFR 134.36(b) should not be applied automatically to all imported articles or their containers which bear a non-origin geographical reference. Section 134.36(b), Customs Regulations {19 CFR 134.36(b)} states that an exception from marking shall not apply to any article or retail container bearing any words, letters, names, or symbols described in 134.46 which imply that an article was made in a country other than the actual country of origin.

In HRL 732412 dated August 29, 1989, Customs found that the placement of the word "Kansas" on different parts of imported jeans did not trigger the requirements of 19 CFR 134.46 because such marking was used as a symbol or decoration and would not reasonably be construed as indicating the country of origin of the article on which it appeared. Likewise, in HRL 733695 dated January 15, 1991, women's trousers with metal rivets die-stamped with the words "Bonjour Paris", and containing a fabric label sewn into the waistband indicating the country of origin as Hong Kong, were not subject to the requirements of 19 CFR 134.46 since the rivets were decoration on the garment and an integral part of the design. However, in HRL 732486 dated September 5, 1989, a label, crest, and hangtag containing the words "Riviera Line" were attached to imported garments. The hangtag contained a picture of a cruise ship in the center with two circles around the ship. Below the ship in large bold lettering was the phrase "RIVIERA LINE." The crest had a large script letter "R" in the center surrounded by a crest with the word "RIVIERA" below the letter "R." It was determined that while the crest was part of the design of the garment, the hangtag with the phrase "Riviera Line" triggered the special marking requirements of 19 CFR 134.46; therefore, the hangtag had to contain the country of origin printed in a conspicuous manner and placed in close proximity to the phrase "Riviera Line." The rationale was that a locality other than the country of origin is more likely to cause confusion when it appears on a hangtag attached to a garment because a hangtag is designed to attract the attention of the purchaser and generally contains information about the article. As such, a reference on the hangtag to a locality other than the country of origin of the article to which it is attached was potentially misleading with regard to the garment's country of origin.

In this case, although the canister contains the phrase "By Appointment to His Majesty The King of Sweden," we do not find that the reference to Sweden triggers the requirements of 19 CFR 134.46. First, the ultimate purchaser of the coffee and coffee canisters should understand that "By Appointment to His Majesty The King of Sweden" refers to the Gevalia coffee and not to the canister. Second, it is our opinion that the ultimate purchaser would not confuse the reference to the King of Sweden as any information concerning the origin of the canister. Since the purpose of 19 CFR 134.46 is to prevent the ultimate purchaser from being confused as to the country of origin of a product, we conclude that the reference to the King of Sweden does not invoke the requirements 19 CFR 134.46. Accordingly, as the requirements of 19 CFR 134.46 are not triggered, 19 CFR 134.36(b) is not applicable. Therefore, we find that an exception from marking the canister itself under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) may be found because the carton in which the canister is packed is a properly marked container which reaches the ultimate purchaser in the U.S. by mail.

HOLDING:

Based upon the information provided, it is our opinion that the reference "By Appointment to His Majesty The King of Sweden" does not trigger the requirements of 19 CFR 134.46. Therefore, we find that an exception from marking the canister itself under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) may be found because the carton in which the canister is packed is a properly marked container which reaches the ultimate purchaser in the U.S. by mail.

NYRL 809408 is hereby revoked.

In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with 19 CFR 177.10(c)(1).

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division