MAR-2-05 CO:R:C:V 735111 RSD

Mr. John C. Herrea
John C. Herrea, Inc.
9815 West Lawrence Avenue
Schiller Park, Illinois 60176

RE: Country of origin marking for parts of ball point pens and fountain pens which will be assembled into complete pens in the U.S.; substantial transformation; conspicuous; legibility, marking after importation; certification; 19 CFR 134.35; 19 CFR 134.41; 19 CFR 134.34

Dear Mr. Herrea:

This is in response to your inquiry on behalf of Autopoint, Inc., directed to the New York Seaport, concerning the country of origin marking requirements for imported pen components which will be assembled into complete pens in the United States. The National Import Specialist forwarded your request to Customs headquarters for a response. On April 14, 1993, the Food and Chemicals Classification Branch issued HQ 952850 concerning the classification of this merchandise. Samples consisting of one assembled fountain pen, one assembled ballpoint pen, and the seven parts of one unassembled ball point pen were submitted with your inquiry.


Autopoint plans to import seven different pen parts, consisting of a plastic cap, a barrel, a clip, a metal spring, a ball-point ink cartridge, and buttons from Germany. Each component will be shipped in bulk lots of 1,000 pieces, packaged in bags or boxes. In the United States, Autopoint will imprint the caps and barrels with advertizing messages, assemble the parts into complete pens, and ship the finished pens to its customers. The assembled pens are available in various color combinations drawn from nine different colors.

The only components that bear a country of origin marking are the clips and the ink cartridges. The country of origin marking on the clips, "W. Germany", appears in non-contrasting, cast-in-mold letters of approximately 1/16th of an inch. This marking is not very clear and is not easily observed from a causal inspection of the completed pen. The word "Germany" is also stamped in non-contrasting colors of the same size on the surface of the ink cartridge, an interior component of the pen.

Autopoint has proposed to re-mark the completely assembled pens after importation by imprinting them with the country of origin at the same time the advertising message is printed on the pens. On the sample ball point pen, the country of origin marking is printed on the lower portion of the cap surface in contrasting color letters of approximately 1/16th inch size. The fountain pen is marked in the same manner, but the country of origin is located on the lower surface of the barrel.

Autopoint claims that practical problems prevent it from putting on a larger country of origin marking on the pen components prior to importation. They claim that the plastic pieces will not release from the molds if the letters of the cast-in-mold country of origin marking were made larger. They also state that it would be expensive and wasteful to have to imprint the pens before importation with the country of origin and again after importation with an advertising message.


Can the country of origin marking be applied to the pens by the importer after importation, if the pen components are marked with the country of origin in cast-in-mold letters at the time of importation, but perhaps not in a manner which is sufficiently legible and/or conspicuous?


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).

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. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of the marking laws and regulations. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character, or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked (see section 134.35, Customs Regulations). In another case involving the marking requirements for imported pens, Customs ruled that the simple assembly of foreign pen components in the U.S. was not a substantial transformation. See HQ 734053 (September 21, 1991). Similarly, upon review of the sample pen parts and the completed pens, we find that the assembly operations to make these finished pens involve minimal processing of the foreign components. Most of the components are screwed, snapped, or simply placed together. The imprinting of advertising messages is also not a substantial transformation. (See HQ 731779 (December 9, 1988) holding that the printing of advertising information on wooden pens shaped like baseball bats was not a substantial transformation.) Accordingly, we find in this case that the foreign components are not substantially transformed by the domestic processing and the pens must be marked as a product of Germany. The fact that in some cases each shipment may not include all the parts for completed pens is not material for purposes of country of origin marking. What is, is that in every case, every part is German. Under your proposal, as imported, the pens will be marked with their country of origin in tiny letters in a non-contrasting color on the clips. This marking by itself is not sufficiently conspicuous. In HQ 733940 (October 24, 1991), involving the country of marking of pens, 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 pen where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a causal 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 by itself 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 pens, we note that the letters of the marking are in a non-contrasting color and they are not clearly molded into the plastic clip. The size of the marking, less than a 1/16th of an inch, is also tiny. The marking is difficult to see and must be held up to a light to be read. Considering the totality of the factors for conspicuousness and legibility, we believe that the country of origin cast-in-mold marking on the plastic clips will not be noticed from a causal inspection of the pens and that it cannot be read without strain. Accordingly, the marking on the plastic clip of the pens is not sufficiently conspicuous and legible to satisfy the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.

Recognizing that the marking molded into the clip may not be sufficient to satisfy the requirements of 19 U.S.C. 1304, you request permission to print a country of origin marking on the pens at the same time that the pens are printed with an advertising message. This marking will be on the pens before they reach the ultimate purchasers.

Each sample assembled pen has the additional country of origin marking printed on them. The letters of the marking are printed on the sample pens in clear letters of a contrasting color to their background. We find that this marking is easy to read and can be noticed from a casual inspection of the pens.

Because this country of origin marking will be put onto the pens after importation the procedures set forth in 19 CFR 134.34 should be followed.

19 CFR 134.34 provides that an exception under 19 CFR 134.32(d) may be authorized in the discretion of the district director for imported articles which are to be repacked after release from Customs custody under the following conditions:

(1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the United States.

(2) The importer arranges for supervision of the marking of the containers by Custom 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 the liquidation of the entry.

In HQ 735292 (September 21, 1993), Customs indicated that although the above provision sets forth the procedures to be followed when unmarked imported articles are to be repacked into marked containers after importation, we believe these procedures are also appropriate in the present situation. The purpose of these procedures is to ensure that articles which are not adequately marked at the time of importation due to practical problems are properly marked after importation. In this case, we believe that due to the nature of plastic molds and the cost of printing the pens twice, that such practical problems exist in marking the pens prior to their importation.


The cast-in-mold lettering on the clip of pens is not conspicuous and legible. The country of origin marking printed on the sample pens is sufficiently legible and conspicuous to satisfy the requirements of 19 CFR 134.41 and 19 U.S.C. 1304. The importer's proposal to print the country of origin of the pens at the same time the advertising message is printed on the pens is acceptable if approved by the district director and the procedures set forth in 19 CFR 134.34 are followed.


John Durant, Director
Commercial Rulings Division

cc: Area Director N.Y. Seaport
N.I.S. Division

David Griffiths
Autopoint, Inc.
208 Water St.