MAR 2-05 CO:R:C:V 733781 EAB

Mr. Charles H. Powell
Intercontinental-Powell, Inc.
1 Poston Road, Suite 230
Charleston, South Carolina 29407

Re: Country of origin marking of imported brass curtain rods and fittings. containers. 19 U.S.C. 1304; 19 CFR 134.32(h); C.S.D. 80-114; 733096; 731967

Dear Mr. Powell:

This is in response to your letter dated September 14, 1990, on behalf of Vesta Inc., in which you request a binding ruling on the country of origin marking requirements of imported brass curtain rods and fittings.

FACTS:

Vesta Inc. imports brass curtain rods and fittings that are manufactured in France. Vesta Inc. is a wholesaler, selling the imported articles to designer and drapery shops. The articles are listed in a catalogue, a copy of which you have provided. On the back of the catalogue is a gummed label, permanently affixed, identifying Vesta Inc. as a wholesaler and giving its U.S. address and toll free telephone number. This label obscures the country of origin disclosure on the bottom of the back page of the catalogue, and no other country of origin statement appears anywhere on the catalogue.

You have also submitted a photocopy of a proposed catalogue that will bear the phrase "Made in France" on its first and every following page.

You state that the only means of purchase from the designer and drapery shops to whom you wholesale the curtain rods and fittings is by means of the consumer ordering his/her selection through the salesperson from the catalogue items.

You have not submitted exemplars of the curtain rods and fittings, nor have you submitted for our examination a sample of the packaging containing the articles in their imported form.

You are of the opinion that the imported articles may be excepted from individual country of origin marking, pursuant to 19 CFR 134.32(h), since the revised catalogue will clearly indicate to an ultimate purchaser in the U.S. the English name of the country of origin of the article. You correctly note that the containers reaching the ultimate purchasers of articles so excepted are themselves excepted pursuant to 19 CFR 134.22(d)(1).

ISSUE:

May foreign articles and the containers in which they reach the ultimate purchaser in the U.S. be excepted from country of origin marking under 19 CFR 134.32(h) and 19 CFR 134.22(d)(1), where the only method of purchasing the articles is through selecting them from a catalogue which lists the country of origin of the articles?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304) generally provides that all articles of foreign origin (or their containers) imported into the U.S. are required to be legibly, conspicuously and permanently marked to indicate the country of origin to an ultimate purchaser in the U.S.

As provided in 19 U.S.C. 1304(a)(3)(H), implemented in 19 CFR 134.32(h), an article is excepted from marking where the ultimate purchaser, by reason of the circumstances of the importation, must necessarily know the country of origin of such article even though it is not marked to indicate its country of origin. Containers or holders of articles within the exception set forth in 19 CFR 134.32(h) are not required to be marked to indicate the origin of the contents. See 19 CFR 134.22(d)(1). The applicability of the exception allowed under 19 CFR 134.32(h) depends upon the identity of the ultimate purchaser. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. In this case, the prospective customer who views the catalogue in order to select and order the imported brass curtain rods and fittings is the last person in the U.S. to pay consideration for and receive the articles, and is, therefore, the ultimate purchaser of them.

Generally speaking, Customs requires that the importer be the ultimate purchaser of the imported article and have direct contact with the foreign supplier for 19 CFR 134.32(h) to apply. For example, in C.S.D. 80-114 (HQ 711081, September 26, 1979), Customs found that where the ultimate purchaser was the importer that owned an interest in the company from which it imported the articles, and ordered the articles directly from that company, the exception under 19 U.S.C. 1304(a)(3)(H) applied. In HQ 733096, February 8, 1990, Customs applied this exception where the ultimate purchaser was the importer and also the parent corporation of its wholly owned subsidiary, from which the parent corporation ordered the foreign articles. See also Rulings 730243 (March 5, 1987) and 731583 (May 31, 1989).

In U.S. Wolfson Bros. Corp. v. United States, 52 Cust. Ct. 86, 91 (1964), the court cited with approval the following statement from "Exporting to the United States":

The clearest application of this [19 CFR 134.32(h)] exemption is when the contract between the ultimate purchaser in the [U.S.] and the supplier abroad insures that the order will be filled only with articles grown, manufactured, or produced in a named country.

In HQ 731967 (May 11, 1990), Customs granted exceptions from marking under 19 CFR 134.32(h) and 134.22(d)(1) where the contract between the importer and the ultimate purchaser specifically required article labelling that identified the name and country of the manufacturer from whom the goods were ordered. In that case the ultimate purchaser was a discrete entity, namely an agency of the U.S. government, and the disclosure of the origin of the articles supplied was mandated by requirements other than customs laws.

In this case, although Vesta Inc. has direct dealings with the foreign manufacturer and necessarily knows the country of origin of the imported articles by reason of the circumstances of their importation, Vesta Inc. is not the ultimate purchaser. Although it is likely that the customers who are the ultimate purchasers will see the country of origin information on the catalogue, we cannot conclude that all customers will view the catalogue; some may rely solely on statements of sales personnel.

HOLDING:

French brass curtain rods and fittings may not be excepted from country of origin marking under 19 CFR 134.32(h) where the contract requiring such goods is between the ultimate purchaser and a retailer who offers the goods for sale by way of selection from a catalogue provided by the importer/wholesaler.

Sincerely,

John Durant, Director
Commercial Rulings Division