MAR-2-05 RR:TC:SM 559922 KR
Donrita Y. Cottrell
Bausch & Lomb
Bausch & Lomb Place
Rochester, NY 14604-2701
RE: Country of Origin Marking for Sunglasses; 19 U.S.C.
1304(a)(3)(D); 19 CFR 134.32(d); 19 CFR 134.34.
Dear Ms. Cottrell:
This is in response to your letter to our Customs office in
New York, dated June 5, 1996, and subsequently forwarded to this
office concerning the country of origin marking requirements for
sunglasses you intend to import in boxes. Two sample cardboard
cartons indicating the proposed method of marking were submitted
with your request.
FACTS:
You state that Bausch & Lomb ("B&L") intends to import non-prescription sunglasses from various countries to be sold at
retail. The sunglasses are not marked with their country of
origin. You intend to import the sunglasses in cardboard cartons
which will bear an adhesive label attached to an end flap bearing
the country of origin of the sunglasses. The box may also
contain a sunglass case, in which case the label on the box will
give the origin of the case as well.
Customs previously issued B&L a ruling, HQ 735261 (November
24, 1993), which excepted imported sunglass cases from individual
country of origin marking if the port director was satisfied,
pursuant to 19 CFR 134.34, that the cardboard box into which the
cases were repacked in the U.S. were properly marked with the
country of origin of the cases. In the present case, B&L is
requesting an exception from individual marking for both the case
and the sunglasses which will be imported in the cardboard
carton. (There will be no repackaging in the U.S.) You
represent that the cartons, on which the label will identify the
origin of both the case and sunglasses, will accompany the
sunglass-filled case throughout the chain of resale and
distribution. You state that in the past, B&L has used a hang
tag to indicate the country of origin of the sunglasses. You
state that the practice of using a hang tag has resulted in legal
actions against B&L for eye injuries. Therefore, you wish to
discontinue using a hang tag and mark the cardboard box instead.
The National Import Specialist responsible for sunglasses
reports that, in viewing and purchasing the sunglasses at various
locations, the sunglasses were sold without the cardboard boxes.
These sunglasses were set out individually without a container.
The sunglasses also did not have hang tags attached to them.
The sample carton is marked with the phrase "Sunglass Origin
U.S.A." on the end flap. Other information such as the B&L
address "Rochester, New York 14692 U.S.A.", the style, color, lot
number and bar code also appear on the adhesive label.
ISSUE:
May the imported sunglasses and cases be excepted from
marking if they are imported in cardboard boxes which have an
adhesive label printed with the country of origin of the
sunglasses?
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, C.A.D. 104 (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 134.1(d), Customs Regulations (19 CFR
134.1(d)), defines ultimate purchaser as "generally the last
person in the U.S. who will receive the article in the form in
which it was imported".
An article is excepted from marking under 19 U.S.C. 1304
(a)(3)(D) and section 134.32(d), Customs regulations (19 CFR
134.32(d)), if the marking of a container of such article will
reasonably indicate the origin of such article. In HQ 735261
(November 24, 1993), Customs ruled that B&L could mark the carton
containing a sunglass case with its country of origin, instead of
directly marking the sunglass case. However, Customs stated that
the container may be marked with the country of origin in lieu of
the article only "if Customs is satisfied that the article will
remain in its container until it reaches the ultimate
purchaser..." Id. In the instant case, B&L wishes to extend
this prior ruling to cover the sunglasses as well as the sunglass
cases. The same reasoning as used in HQ 735261 will apply to the
instant case. However, we have received a report of instances in
which B&L sunglasses have been sold without the cardboard
container and without any hang tags indicating the country of
origin. Customs would allow the country of origin to be printed
or molded directly into the frame and cases, or adhesive labels
could also be used. Therefore, since Customs is not satisfied
that the articles will remain in their container until they reach
the ultimate purchaser and, since alternate methods of marking
the articles are available, in the absence of specific assurances
to the port director that the sunglasses will reach the ultimate
purchaser in properly marked containers, the articles themselves
must be marked with their country of origin.
In addition, 134.46, Customs Regulations (19 CFR 134.46),
requires that when the name of any city or locality in the U.S.,
or the name of any foreign country or locality other than the
name of the country or locality in which the article was
manufactured or produced, appears 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.
Customs has ruled that in order to satisfy the close proximity
requirement, the country of origin marking must appear on the
same side(s) or surface(s) in which the name of the locality
other than the country of origin appears. HQ 708994 (April 24,
1978). The purpose of 19 CFR 134.46 is to prevent the
possibility of misleading or deceiving the ultimate purchaser as
to the origin of the imported article.
The special marking requirements set forth in section 134.46
are triggered by "Rochester, New York, U.S.A" printed on the
adhesive label. Accordingly, the actual country of origin of the
sunglass must appear "in close proximity" to the U.S. reference
and in lettering of at least a comparable size. The country of
origin marking appearing on the adhesive label is directly above
the U.S. address and would satisfy the requirements of 19 CFR
134.46, if the prior specification that the ultimate purchaser
receives the sunglasses in a properly marked container is
satisfied.
HOLDING:
Accordingly, pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR
134.32(d) and 19 CFR 134.46, the sunglasses and their cases are
not excepted from individual country of origin marking unless the
port director is satisfied that the ultimate purchaser receives
the articles in their original unopened and properly marked
cardboard containers.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is 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