MAR-2-05 CO:R:C:V 734693 KR
District Director of Customs
U.S. Customs Service
P.O. Box 619050
1205 Royal Lane
Dallas TX 75261
RE: Country of origin marking on the bottom of a box containing a hand held sewing machine; 19 CFR §134.32(d); conspicuous.
Dear Sir:
This is in response to your memorandum dated June 18, 1992, and forwarded to this office on June 23, 1992, requesting internal advice from this office concerning the acceptability of country of origin marking placed on the bottom of a box containing a hand held sewing machine imported from China. A sample of the box and sewing machine was submitted for examination.
FACTS:
The sewing machine is made in China. The sewing machine is marked with the country of origin "MADE IN CHINA" molded in the same color into the plastic cap of the battery well. The plastic cap finishes the bottom corner of the sewing machine. The box containing the sewing machine is printed with writing describing the uses, component parts power requirements, and pictures demonstrating uses of the sewing machine on the top and four sides of the box. The bottom of the box is plain white with "MADE IN CHINA" printed on it. No other printing or pictures appear on the bottom of the box.
The sewing machine was imported in the manner described above pursuant to Customs instructions, the importer placed an adhesive label on the front of the box stating "MADE IN CHINA". The importer for future shipments believes that the marking appearing on the bottom of the box is sufficient, and no further marking is required.
ISSUE:
Whether the proposed marking on the packaging described above satisfies the requirements of 19 U.S.C. §1304, and the Customs Regulations promulgated thereunder, 19 CFR Part 134.
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. The Court of International Trade stated in Koru North America v. United States, 701 F. Supp. 229, 12 CIT 1120 (CIT 1988), that "in ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved." The purpose of the marking statute is outlined in United States v. Frielaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that: "Congress intended 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."
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.41(b), Customs Regulations (19 CFR §134.41(b), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.
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 instance, the ultimate purchaser of the tools is the retail consumer because the retail consumer is the last person in the U.S. to receive the imported merchandise in the form in which it is imported.
An article is excepted from marking under 19 U.S.C. §1304 (a)(3)(D) and 19 CFR §134.32(d), if the marking of a container of such article will reasonably indicate the origin of such article. This exception is applicable if Customs is satisfied that the marked container in which the article is imported will reach the ultimate purchaser in all reasonably foreseeable circumstances in its original, unopened and properly marked container. C.S.D. 89-78.
19 U.S.C. §1304, requires that the country of origin marking be "conspicuous." 19 CFR §134.41(b) states that the ultimate purchaser "must be able to find the marking easily and read it without strain." Customs has determined that, in general, the bottom of a box is not a conspicuous location to place a country of origin marking. In HQ 732579 (March 27, 1990), Customs ruled that because the box was likely to be stacked on a shelf so that the bottom would not be visible, and because all the pertinent information concerning the product was contained on the side panels of the box, that the bottom was not a conspicuous location for the country of origin to be placed. See HQ 732917 (May 11, 1990) (stating that "Customs has previously ruled that the bottom of a box is not a conspicuous location for a country of origin marking."); HQ 732870 (March 19, 1990). See also T.D. 86-129 (June 26, 1986) (establishing a general policy for marking shoe boxes which states that marking on the bottom of the box is insufficient).
Although the sewing machine itself is marked with the country of origin molded into the plastic, the ultimate purchaser may not open the packaging to determine the country of origin of the sewing machine. Therefore, the box must be marked with the country of origin. The importer has placed the country of origin marking on the bottom of the box. The remainder of the bottom is plain white. The top and four side panels of the box contain pictures and descriptions depicting possible uses of the sewing machine, and pertinent information concerning the parts included and power sources required. The ultimate purchaser would have no reason to view the bottom of the box, but would look at all the information on the top and sides of the box. Therefore, pursuant to Customs general policy, and the cases cited above, we find that marking the bottom of the sewing machine box is not a conspicuous location for the country of origin marking.
HOLDING:
The country of origin marking appearing on the bottom of the sewing machine box is not a conspicuous location and, therefore, is not an acceptable country of origin marking pursuant to 19 U.S.C. §1304(a)(3)(D) and 19 CFR §134.32(d).
Sincerely,
John Durant, Director
Commercial Rulings Division