MAR-2-05 RR:TC:SM 559892 MLR
Mr. Howard Meyer
PBB Group
P.O. Box 950
434 Delaware Avenue
Buffalo, NY 14202
RE: Country of origin marking for costume jewelry; returned
to U.S. distributor; damaged; overstocked; jewelry
boxes; 19 CFR 134.26
Dear Mr. Meyer:
This is in reference to your letter of June 3, 1996,
requesting a ruling on behalf of TMS Marketing, concerning
the country of origin marking requirements for certain
costume jewelry. Samples were submitted with your request.
FACTS:
The article at issue is costume jewelry stated to be
made in the Far East. The jewelry will be returned from TMS
Marketing in Canada to its one U.S. distributor, as it is
stated that the jewelry is either damaged or is overstocked
merchandise which is not suitable for resale without further
conditioning. In a telephone conversation with a member of
my staff, you indicated that the imported jewelry will
either be destroyed, shipped abroad to the country where the
jewelry was manufactured (in this case Korea), or possibly
repacked and resold in the U.S.
Each of the pieces of jewelry is stated to be indelibly
marked with the country of origin. The samples submitted, a
ring, bracelet, pin, and earrings, are stamped with "Korea."
The jewelry is also individually boxed and many of the boxes
are bubble-sealed. The boxes submitted are either
constructed of a black hard-shell plastic or of a hard-shell
plastic covered by a gray velvet type material. Both types
of boxes open and close with the aid of a hinge, and the top
inside section of both boxes is covered with a smooth satin
material, while the bottom inside section contains a
cardboard insert covered by either black or gray velvet type
material.
ISSUE:
What are the country of origin marking requirements of
the costume jewelry and jewelry boxes at issue?
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.
The first question that must be resolved is who is the
ultimate purchaser of the imported jewelry pieces. For the
pieces destroyed or returned to the manufacturer abroad, the
U.S. distributor will be the ultimate purchaser. Therefore,
it will be sufficient, pursuant to 19 U.S.C. 1304(a)(3)(D)
and 19 CFR 134.32(d), if the outside container in which the
jewelry pieces are packed is marked to reasonably indicate
to the U.S. distributor the origin of such pieces. For
those pieces which will eventually be sold at the retail
level, the retail customers will be the ultimate purchasers
and the jewelry pieces will need to be marked in accordance
with 19 U.S.C. 1304 and 19 CFR Part 134.
The second question to be resolved is whether the
imported jewelry pieces which eventually will be resold to
retail customers are marked in accordance with the
requirements of the marking statute. In Headquarters Ruling
Letter (HRL) 734481 dated August 19, 1992, Customs ruled
that certain jewelry engraved with the origin of the jewelry
near the clasp did not satisfy the requirements of 19 U.S.C.
1304 and 19 CFR Part 134. The importer was instructed to
mark the chains by some other method which was easy to read,
such as hang tags. In reaching this conclusion, Customs
looked to C.S.D. 79-47 (August 7, 1978) and C.S.D. 79-379
(April 9, 1979), where Customs required corrective marking
(string tags) on gold jewelry because the existing indelible
marking failed to meet the standard of legibility and/or
conspicuousness. The result in all three of these decisions
would have been different had the indelible markings been
sufficiently legible and conspicuous. See HRL 735225 dated
August 17, 1993 (tag marking was not required because the
quality of the indelible marking on the clasp resulted in
well-defined lettering that could be read without
difficulty). In that case, the origin markings measured
approximately 1/16" by 1/8".
In this case, while the origin markings on the
submitted samples are approximately the same as those
approved in HRL 735225, the print quality on each sample is
not legible. Furthermore, the location of the marking on
each sample, except for the ring, is not conspicuous.
Therefore, we find that for all pieces, the indelible
marking on the jewelry by itself is not sufficiently legible
and that a hang tag, such as the one described above, or an
adhesive sticker placed on the cardboard insert inside the
jewelry box will be needed to correct the marking. We note
that if the print size on the ring can be increased, the
ring would not need to be marked with an adhesive sticker or
hang tag.
We note that the submitted bracelet is also packaged in
a plastic bag marked with "Made in Korea" inside the jewelry
box. However, in HRL 735218 dated January 11, 1994, Customs
ruled that silver pendants imported in plastic bags marked
with the country of origin of the pendants were not legally
marked because it was likely that the pendants would be
removed from the bags prior to retail sale. Rather, it was
determined that string tags or adhesive stickers would be
acceptable methods of marking the pendants. Similarly,
although the bracelets are imported in plastic bags
indicating their country of origin, we find that the
bracelets would need to be marked with a hang tag in
accordance with HRL 735218, especially since it is likely
that they will be removed from the plastic bag in order to
examine their condition and determine whether they are
eligible for retail sale.
In order to ensure that the pieces intended for sale at
retail will be marked to inform the retail customer of the
jewelry's country of origin, the procedures of 19 CFR 134.26
shall be followed. This section provides in pertinent part
that:
If an imported article subject to these requirements is
intended to be repacked in retail containers ... after
its release from Customs custody, or if the port
director having custody of the article, has reason to
believe such article will be repacked after its
release, the importer shall certify to the port
director that: (1) If 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; or (2) if the article is
intended to be sold or transferred to a subsequent
purchaser or repacker, the importer shall notify such
purchaser or transferee, in writing, at the time of
sale or transfer, that any repacking of the article
must conform to these requirements. The importer, or
his authorized agent, shall sign the following
statement.
A copy of 19 CFR 134.26 is enclosed. Accordingly, this
procedure shall be used since the U.S. distributor will be
repacking the jewelry pieces. The requirements of the
marking statute and 19 CFR 134.26 will be satisfied if the
outside container in which the jewelry is imported is
properly marked with the jewelry's country of origin; if TMS
Marketing notifies the U.S. distributor that the jewelry
pieces intended for sale at the retail level need to be
marked; and the U.S. distributor marks each jewelry piece
intended for retail sale with a hang tag or adhesive sticker
indicating the country of origin of the jewelry piece.
We also note that the jewelry boxes are subject to
marking requirements. In Bausch & Lomb Incorporated v.
United States, 17 CIT 790 (August 5, 1993), the United
States Court of International Trade considered the question
of whether imported sunglasses cases were disposable
containers for purposes of the country of origin marking
requirements. The outer layer of the cases consisted of
pebble grain expanded vinyl with a hard plastic insert and a
metal snap closure which secures the sunglasses in the case.
The court pointed to the durability and protective quality
of the sunglasses cases and noted that they were not similar
to cans, bottles, paper or polyethylene bags, or paperboard
boxes which 19 CFR 134.24 lists as examples of disposable
containers not required to be individually marked with their
own country of origin. The court found that the plaintiff
failed to establish that the sunglass cases were ordinarily
discarded by the consumer after any particular amount of
usage or after any particular event and determined that they
were not disposable containers exempt from the marking
requirements under 19 CFR 134.24(c)(1). Relying on Bausch &
Lomb, in HRL 734691 dated January 7, 1994, Customs found
that jewelry boxes similar to the type in this case were
separate articles of commerce that had to be individually
marked with their own country of origin. Additionally,
pursuant to 19 CFR 134.14, words or symbols were required on
the jewelry box to show that the origin indicated was that
of the jewelry box and not of the other articles with which
it may be sold or combined.
Therefore, in this case, similarly upon importation,
the individual jewelry boxes may be excepted from individual
country of origin marking indicating their own country of
origin, pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR
134.32(d), if the marking of the container in which the
individual jewelry boxes (along with the jewelry pieces) are
packed will reasonably indicate to the U.S. distributor the
origin of the jewelry boxes (and jewelry pieces) contained
therein. However, as with the jewelry pieces, for those
jewelry boxes which will eventually be sold with the jewelry
pieces at the retail level, the retail customers will be the
ultimate purchasers and the jewelry boxes will need to be
marked with their own country of origin, along with the
country of origin marking of the jewelry piece. Similarly,
as with the jewelry pieces, the requirements of 19 CFR
134.26 apply and will be satisfied if the container in which
the jewelry boxes are packed is properly marked with the
origin of the boxes, and if TMS Marketing notifies the U.S.
distributor that the jewelry boxes, intended for retail
sale, need to be labeled with a marking such as "Box Made in
(country of origin)" with an adhesive sticker.
HOLDING:
Based on the facts and samples submitted, the jewelry
pieces and jewelry boxes may be excepted from marking
pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) and
only the outer container in which the jewelry boxes and
jewelry pieces are packed must be marked with the country of
origin of both the jewelry boxes and jewelry pieces.
Furthermore, the jewelry pieces and jewelry boxes intended
for retail sale may be repacked and manipulated after their
release from Customs custody if the requirements of 19 CFR
134.26 are satisfied. The requirements of the marking
statute and 19 CFR 134.26 will be satisfied if the outside
container in which the jewelry is imported is properly
marked with the jewelry's country of origin; if TMS
Marketing notifies the U.S. distributor that the jewelry
pieces intended for sale at the retail level need to be
marked; and the U.S. distributor marks each jewelry piece
intended for retail sale with a hang tag or adhesive sticker
indicating the country of origin of the jewelry piece.
Additionally, each jewelry box must be marked with its own
country of origin and the requirements of 19 CFR 134.14 must
be satisfied by using a marking such as "Box Made in
(country of origin)."
A copy of this ruling letter should be attached to the
entry documents filed at the time the goods are entered. If
the documents have been filed without a copy, this ruling
should be brought to the attention of the Customs officer
handling the transaction.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division
Enclosure