MAR-2-05 CO:R:C:V 734703 RSD
District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas, Texas 75261
RE: Internal advice request on the country of origin
requirements of a five piece plier set packaged in a pouch;
special marking requirements; container marking; 19 CFR
134.32(d); 19 CFR 134.43; 19 CFR 134.34
Dear Sir:
This is in response to your memorandum dated May 21, 1992,
forwarding the request for internal advice concerning the
importation of plier sets, submitted by Ruby Wood of the Customs
brokerage firm Evans and Wood and Co., Inc., on behalf of the
importer, B & F Systems. We have received a sample of the plier
set, the pouch containing the plier set, and the box in which the
pliers will be packaged.
FACTS:
The importer, B & F Systems, is importing a five piece
mechanic's plier set made in Taiwan. The plier set contains a 6"
diagonal cutting plier, 6" long nose plier, 6" linesmen cutting
plier, 8" crimping tool, and a 10" (Max) locking plier. The
plier set is packed in a nylon/plastic pouch with a separate
pocket for each hand tool. Each pocket is open at one end so
that the pliers can easily be removed. The pouch contains the
marking "MADE IN TAIWAN" in white letters of about 1/4" against a
black background. The sample pouch also has a pressure sensitive
sticker on it which reads "MADE IN TAIWAN".
The record indicates that the importer's Customs broker
requested permission to mark a shipment of 1000 plier sets with
pressure sensitive labels. The Customs District in Dallas
informed the broker that the country of origin marking was not
acceptable because as packaged, Customs could not be assured that
the pliers would reach the ultimate purchaser properly marked.
The district also informed the importer through its broker that
the Customs Regulations at Section 134.43 (19 CFR 134.43),
require pliers to be marked by die stamping, cast-in-mold
lettering, etching, engraving, or by means of metal plates which
are secured to the article by welding, screws, or rivets.
Subsequently, the importer agreed to place the pouch with
the pliers in a box which would be marked with the country of
origin of the pliers. The sample box is marked on two of its
panels in black letters of about 1/8" against a yellow
background. In a letter sent to Customs Headquarters, dated
August 4, 1992, the broker indicated that the importer will
shrink wrap the box, but a sample of the shrink wrapped box was
not sent.
ISSUES:
Are the individual tools in the pliers set excepted from
country of origin marking, if they are sold in the sample box
which will be shrink wrapped and marked to indicate the country
of origin of the pliers?
Do the requirements of Section 134.43 of the Customs
Regulations apply to the pliers set if it is sold in the sample
box which will be shrink wrapped?
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 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.
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).
Articles for which the marking of the containers will
reasonably indicate the origin of the article are excepted from
marking under 19 U.S.C. 1304(a)(3)(D). For an exception to be
granted under 19 U.S.C. 1304(a)(3)(D), generally the article must
be imported in a marked retail container which will reach the
ultimate purchaser unopened. See also 19 CFR 134.32(d).
In this case, marking only the pouch of the tool set would
not be acceptable because the pouch is not sealed. Customs could
not be sure that the individual hand tools would remain in the
pouch until they were purchased. Therefore, Customs could not be
certain that the ultimate purchaser would be apprised of the
country of origin of the pliers before their purchase. However,
the individual pieces of the pliers set would be excepted from
individual marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR
134.32(d), if the set is sold in a properly marked container
which was sealed. As indicated in the submission of August 4,
1992, the sample box will be shrink wrapped and marked to
indicate the country of origin of the plier set. The marking on
the box would inform the ultimate purchaser of the country of
origin of the plier set and the shrink wrap would assure that the
box remained unopened until the plier set was bought by the
ultimate purchaser. Although the country of origin marking on
the box is not in the most conspicuous location on the box, there
is no requirement that the country of origin marking be in the
most conspicuous place. It is only necessary that the marking be
easy to find and be read without strain. In our judgment, the
ultimate purchaser would be able to find and read the country of
origin marking on the sample box without too much difficulty from
a casual inspection of the box.
Although pliers are subject to the special marking
requirements of 19 CFR 134.43, Customs has previously ruled that
such articles may be excepted from individual marking if the
marking of their containers will satisfy the requirements of 19
CFR 134.32(d). See HQ 733301 (August 8, 1990). If the articles
will be packaged in a properly marked box which will reach the
ultimate purchaser unopened, such as the shrink wrapped sample
box, the special marking requirements of 19 CFR 134.43 would not
apply to the pliers set. This office recently issued a ruling to
this broker which likewise noted that the exception provided at
19 CFR 134.32(d) is available even for articles subject to the
special marking requirements of 19 CFR 134.43. See 134.43 (May
7, 1992).
For the merchandise which has already been imported, as
explained above the marking on the pouch is not sufficient to
except the pliers from the individual marking requirements of
134.43. However, under 19 CFR 134.34 an exception may be
authorized in the discretion of the district director under 19
CFR 134.32(d) for imported articles which are to be repacked
after release from Customs custody under following conditions:
(1) The containers in which the articles are repacked will
indicate the origin of the articles to an ultimate purchaser in
the U.S.; (2) The importer arranges for supervision of the
marking of the containers by Customs officers at the importer's
expense or secures such verification as may be necessary by
certification and the submission of a sample or otherwise of the
marking prior to liquidation of the entry. Accordingly, if the
district director is satisfied that the importer will repack the
previously imported plier sets into properly marked boxes and
that these boxes will reach the ultimate purchaser unopened, then
an exception can be authorized under 19 CFR 134.34. If the
district director denies the use of 19 CFR 134.34, he must be
able to articulate a reason why in his discretion he was denying
the importer the use of 19 CFR 134.34.
HOLDING:
The country of origin marking on the sample box is
conspicuous and indicates the country of origin to the ultimate
purchaser of the plier set. Each piece of the plier sets would
be excepted from the special marking requirements of 19 CFR
134.43, and from individual marking, if the set is packaged and
sold in the shrink wrapped sample box. The previously imported
plier sets can also be excepted from country of origin marking,
if the district director is satisfied that they will be
repackaged in accordance with the requirements of 19 CFR 134.34.
Sincerely,
John Durant, Director
Commercial Rulings Division