MAR-2-05 CO:R:C:V 734101 AT

Mr. Richard G. Seley
Rudolph Miles & Sons, Inc.
4950 Gateway East
P.O. Box 144
El Paso, Texas 79942

RE: Country of origin marking requirements for imported toys packaged in plastic eggs and dispensed through vending machines; 19 CFR 134.26

Dear Mr. Seley:

This is in response to your letter dated May 14, 1991, amending your original ruling request dated March 26, 1991, on behalf of your client L.M. Becker & Co., Inc., requesting a binding ruling on the country of origin marking for imported toys.

FACTS:

Your client L.M. Becker & CO., Inc., intends to import small toys made in Hong Kong, China or Taiwan. Each toy will be individually marked to indicate its country of origin. After being imported, L.M. Becker then intends to export these same items to Mexico for packaging in U.S. origin plastic containers, for final importation into the U.S. You state that the small toys are always packaged in plastic containers and are always sold randomly through vending machines. Two samples of your client's product, the way they would be imported from Mexico, ready for retail sale, have been submitted with your letter. The first sample is a blue plastic toy gyroscope approximately 1 1/2" in diameter which is marked with the words "Made in China". The gyroscope is packaged in a orange plastic container which is in the shape of an egg. The second sample is a metal animal pin approximately 1" in length which is marked with the words "Hong Kong" and packaged in a clear plastic container also in the shape of an egg.

You assert that L.M. Becker is concerned because potential purchasers of the small toys do not have the opportunity to remove the item form the vending machine and its plastic container to examine the article until after having made their purchase decision. Accordingly, L.M. Becker proposes to have a conspicuous notice placed on the outside of every vending machine in the field and on all new machines sold or leased in the future listing those countries in which the small toys are made in. This sign would be affixed next to the sign that tells a potential consumer what coin is required to activate the particular machine. Under this arrangement, L.M. Becker requests that it be allowed to import its product from Mexico without a country of origin marking on the plastic egg container.

L.M. Becker also states that its policy is to only sell these small toys to authorized "Toy 'N Joy" distributors and wholesalers, and therefore it could assure that all machines containing its product would have the proposed notice conspicuously attached to the vending machine through the cooperation of those distributors and wholesalers.

A mock up of the proposed sign was also submitted with your letter. The sample notice is designed in the shape of a rectangle. The sign states that "The Toys Contained In This Machine Are Marked With The Country Of Origin, And May Be Made In One Or More Of The Following Countries:" Below these words the names of the following countries are printed in this manner:

Hong Kong Taiwan China

ISSUE:

Does marking the country of origin of the imported toys on the toys themselves along with an origin statement on the vending machine rather than the plastic egg container satisfy the requirements of the country of origin marking requirements under 19 U.S.C. 1304 and 19 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 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. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the 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. Disposable containers or holders of imported merchandise, which are sold without normally being opened, should be marked to indicate the country of origin of their contents (19 CFR 134.24(d)(2)). Section 134.32(d), Customs Regulations (19 CFR 134.32(d)), provides that articles may be excepted from individual marking provided marking on the container will reasonably indicate the country of origin of the article.

In this case, the small toys are individually marked with the country of origin of which the article was made in whether it be Hong Kong, Taiwan or China. However, due to the particular nature of theses articles, in that the toys are enclosed in plastic egg containers and purchased through vending machines, the ultimate purchaser will not be able to find the marking easily and read it without strain prior to purchase, as required under 19 CFR 134.41. Ordinarily the plastic egg containers would have to be marked to indicate the country of origin of their contents (19 CFR 134.24(d)(2)). However, we agree with L.M. Becker's position that marking the plastic egg container will not satisfy the requirements under 19 CFR 134.41 due to the particular nature of this article and that the vending machine is simply the only container a potential ultimate purchaser can examine prior to purchasing the article. In HQ 732122 (January 26, 1990), Customs ruled that small rubber balls presented for sale to ultimate purchasers in a vending machine may be excepted from individual marking pursuant to 19 CFR 134.32(d), provided a display card visible through a window of the vending machine is imprinted in a conspicuous location with the origin of the balls being dispensed.

Because the imported toys in this case are sourced from three different countries, it is not possible for the vending machine to accurately identify the particular country of origin of each item. However, we find the proposed marking of the vending machine is acceptable so long as the toys themselves are marked with their actual country of origin. In this manner, the

ultimate purchaser will be informed of the country of origin in as good a manner as possible considering the circumstances. In such case, an additional marking of the country of origin on the plastic eggs, which would not be visible prior to purchase, is not required.

HOLDING:

Plastic egg containers enclosing individually marked small toys imported from Mexico which are presented for sale to the ultimate purchasers in vending machines are not required to be marked to indicate the country of origin of their contents (toys) provided the toys are individually marked and the district director is satisfied that a vending machine will be marked as proposed. Certification by L.M. Becker as per section 134.26, Customs Regulations (19 CFR 134.26), that such card will in fact be displayed, is required.

Sincerely,

John Durant, Director
Commercial Rulings Division