MAR-2-05 CO:R:C:V 734639 RSD

Mr. J.R. Robinson
J.R. Robinson & Associates, Inc.
18115 Second Avenue, N.
Minneapolis, Minnesota 55447

RE: Country of origin marking requirements for a molded plastic container used to carry small objects known as a "SUBMARIN"; legible; conspicuous; permanent; 19 CFR 134.41

Dear Mr. Robinson:

This is in response to your letter of April 15, 1992, requesting advice on the country of origin marking requirements for a plastic container known as a "SUBMARIN". On April 1, 1992, the Food and Chemical Classification Branch issued HQ 950779 regarding the classification of the merchandise. In that ruling, you were advised for any question on the marking of the article, you should contact the Value and Marking Branch at Customs Headquarters. We have reviewed the country of origin marking on the sample of the SUBMARIN you previously submitted in connection with the classification case.

FACTS:

The merchandise at issue is a molded plastic container of a trapezoidal shape. Placed in the upright, front-facing position, it measures approximately 2" wide on the front, 3" wide on the rear, 2" deep, and approximately 4 1/2" tall when closed. The body of the container is 3 3/8" tall and the 1 1/2" tall lid overlaps the body and rests on 7/16" tall lip. A rubber gasket sits on the lip of the body to provide a purported water-tight seal when the top is secured by the plastic lift locks attached to the side of the body. An adjustable webbed nylon strap is threaded through a clip on the rear of the body of the container. The strap, with attached plastic clips, extends approximately 38"-enough to allow placement around the waist of most users. The sample viewed was red and had a decal affixed diagonally across the front panel with the word "SUBMARIN".

The promotional literature for the product states that the purpose of the product is to permit the user to "enjoy your favorite outdoor leisure activities without worrying about your personal objects. "Examples of objects that can be protected from "water, sand, shock, or theft" are "money, credit cards, keys, cigarettes, lighter, watch, film, etc."

The sample SUBMARIN is marked on the inside of the top surface of the lid in a little square with tiny cast-in-molded non-contrasting raised letters which read "HECHO EN MEXICO". The size of the marking is less than 3 point type. (A point is a unit of measurement approximately equal to 0.01384 inches or nearly 1/72 inches and all type sizes are a multiple of this unit.) In your letter you inquire if the markings on the merchandise would be sufficient for "duty free classification".

ISSUE:

Does the country of origin marking on the SUBMARIN satisfy the requirements of the country of origin marking law for conspicuousness and legibility?

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 (1940). 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. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S, is able to find the marking easily and read it without strain.

In HQ 733940, October 24, 1991, we indicated that there are certain factors that need to be considered in determining if the country of origin marking on an article, is conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors that should be considered is the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchasers can easily see the marking without strain. The location of the marking should be in a place on the article where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor should be considered conclusive in determining whether a marking meets the conspicuous requirement of 19 CFR 134.41 and 19 U.S.C 1304. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.

In applying these factors to the sample SUBMARIN, we note that the very small size of the marking, less than 3 point type, makes it difficult to see. The ultimate purchaser is likely to have to strain to read the marking. We also note that the country of origin marking is not in a contrasting color and does not stand out. With respect to the location of the marking on the SUBMARIN, we find that an ultimate purchaser is not likely to notice the marking on the inside of the lids. Based on the combination of these factors, we find that the country of origin marking on the SUBMARIN does not satisfy the requirements of 19 CFR 134.41 and 19 U.S.C. 1304. Accordingly, we find that the marking on the SUBMARIN is not acceptable.

The country of origin marking should be moved from the inside of the lid to an outside surface of the container so that an ultimate purchaser can find the marking easily from a casual inspection of the SUBMARIN. The marking should also be large enough so that it can be read without strain. We suggest that the marking should be in at least 5 point type and if possible in a contrasting color. If this type of marking cannot be accomplished with cast-in-mold letters, you may use a sticker or a decal to indicate that the article is made in Mexico. The marking must be permanent enough to stay on the article until it reaches the ultimate purchaser. This includes normal handling of the article prior to its purchase.

You also inquire about the marking requirements for merchandise classified under a subheading which is free of duty as we found for this article in HQ 950779 (April 1, 1992). We stated that the SUBMARIN was classified under subheading 3923.10.0000, HTSUS, and was free of duty provided that the article is a product of Mexico. However, the fact that the article was free of duty does not affect the requirement of 19 U.S.C. 1304 that it be marked with its country of origin. Similarly, there are no special marking requirements for merchandise, such as the SUBMARIN, classified under a provision subject to a free-rate of duty.

HOLDING:

The country of origin marking on the sample SUBMARIN is not conspicuous and legible and is not acceptable under 19 CFR 134.41 and 19 U.S.C. 1304.

Sincerely,

John Durant, Director
Commercial Rulings Division