HQ 560013
December 3,1996
MAR-02 RR:TC:SM 560013 MLR
Daniel J. Gluck, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048
RE: Country of Origin Marking; nylon handles; conspicuous;
ultimate purchaser
Dear Mr. Gluck:
This is in reference to your letter of August 6, 1996,
requesting a ruling on behalf of HEWI, Inc. ("HEWI"),
concerning the country of origin marking on certain nylon
handles. Samples were submitted with your request.
FACTS:
The article at issue is a cabinet handle made of
injection molded nylon. The product has a highly polished
and non-porous surface. It is stated that HEWI imports
injection molded nylon handles and knobs, primarily for sale
to hardware distributors and industry related manufacturers,
who incorporate the handles into furniture and fixtures
produced in North America for eventual retail sale. A small
percentage of handles are sold by HEWI to a few firms for
retail sale as imported. HEWI sells these handles in
individual bags with the country of origin marked on the bag
(a sample is submitted).
The handles in question have traditionally been imported
in bulk with the country of origin marked on the outer carton
in which the handles were shipped. Because there is a
possibility that some handles imported in bulk could be sold
by the hardware distributors, HEWI has developed a way to
mark each individual handle. One sample of red color was
submitted, measuring 4 3/16 inches in overall length, with a
1 3/8 inch return on either end. The sample of the red
handle is marked on the round surface of the handle which
eventually will be flush to the furniture surface after the
handle is installed. The word "GERMANY" is in raised
letters, approximately 1/8 inch high (approximately 8 point
print), printed in a circular fashion.
ISSUES:
I. Whether it is sufficient to only mark the outer
container in which the handles are imported.
II. Whether the country of origin marking on the round
surface of the handle in raised letters, approximately
1/8 inch high, printed in a circular fashion, is
sufficiently legible and conspicuous to satisfy the
requirements of 19 U.S.C. 1304.
LAW AND ANALYSIS:
The marking statute, section 304, Tariff Act of 1930, as
amended (19 U.S.C. 1304), provides that unless excepted,
every article of foreign origin imported in 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. Inc., 27 CCPA 297, 302, 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. The marking must survive
normal distribution and store handling, and the ultimate
purchaser in the U.S. must be able to find the marking easily
and read it without strain. 19 CFR 134.41(b).
I. Ultimate Purchaser
The ultimate purchaser is defined as generally the last
person in the U.S., who will receive the article in the form
in which it was imported. 19 CFR 134.1(d). You state that
the marking requirements are satisfied by indicating the
country of origin on the outer container of the handles for
the handles sold to hardware distributors and industry
related manufacturers who incorporate the handles into
furniture and fixtures produced in the U.S. for retail sale.
In Headquarters Ruling Letter (HRL) 735183 dated December 17,
1993, Customs considered drawer slides used in the
manufacture of finished furniture and found the ultimate
purchaser of the drawer slides to be the person who
manufactured the furniture, so that the slides did not need
to be individually marked. Similarly, in this case, we find
that handles incorporated into furniture and fixtures will be
substantially transformed and do not require individual
marking, and it will be sufficient to mark the outer
container in which the hardware distributors and industry
related manufacturers receive the handles. As you also
indicate, the handles may additionally be placed in
individual bags which contain the country of origin marking.
You have indicated that you cannot assure that in all
instances the handles will not be sold or distributed
individually. Therefore, to ensure that the handles will be
marked to inform the ultimate purchaser of the handles'
country of origin when they are not properly individually
marked or placed in individual bags, the procedures of 19 CFR
134.26 shall be followed. This section provides in pertinent
part that:
If an imported article subject to these requirements is
intended to be repacked in retail containers ... after
its release from Customs custody, or if the port
director having custody of the article, has reason to
believe such article will be repacked after its release,
the importer shall certify to the port director that:
(1) If the importer does the repacking, he shall not
obscure or conceal the country of origin marking
appearing on the article, or else the new container
shall be marked to indicate the country of origin of the
article in accordance with the requirements of this
part; or (2) if the article is intended to be sold or
transferred to a subsequent purchaser or repacker, the
importer shall notify such purchaser or transferee, in
writing, at the time of sale or transfer, that any
repacking of the article must conform to these
requirements. The importer, or his authorized agent,
shall sign the following statement.
Accordingly, this procedure shall be used since it is
indicated that HEWI cannot assure that the distributor will
not only use the handles for incorporation into furniture or
fixtures, but may sell the handles individually. The
requirements of the marking statute and 19 CFR 134.26 will be
satisfied if the outside container in which the handles are
imported is properly marked with the handles' country of
origin, and if HEWI notifies the U.S. distributor that any
handles intended for sale at the retail level need to be
marked.
II. Conspicuous and Legible
It is also proposed that the handles will be marked on
the round end portion of the handle, in raised lettering
approximately in 8 point type. In HRL 733940 dated October
24, 1991, Customs considered certain factors in determining
if the country of origin marking on an article, such as a
pen, was conspicuous within the meaning of 19 CFR 134.41 and
19 U.S.C. 1304. Among the factors considered was the size of
the marking, the location of the marking, whether the marking
stood out, and the legibility of the marking. The size of
the marking had to be large enough so that the ultimate
purchaser could easily see the marking without strain. The
location of the marking had to be in a place on the pen where
the ultimate purchaser could expect to find the marking or
where it could be easily noticed from a casual inspection.
Whether the marking stood out was dependent on where it
appeared in relation to other print on the article and
whether it was in contrasting letters to the background. The
legibility of the marking concerned the clarity of the
letters and whether the ultimate purchaser could read the
letters of the marking without strain. No single factor was
stated to be conclusive by itself in determining whether a
marking was conspicuous. Instead, it was the combination of
these factors which determined whether the marking was
acceptable.
In HRL 734162 dated November 18, 1991, Customs found
that markings on several pens, in type as large as 4 « points
and in locations such as on the top portion of the clip or
underneath the clip, were not conspicuously or legibly marked
to satisfy the requirements of 19 U.S.C. 1304. However, in
HRL 733839 dated January 31, 1991, Customs found that a
small, molded, and non-contrasting "Made in China" marking on
a sound box measuring 2.25 x 1.375 x 0.375 inches could still
be read easily and without strain, considering the nature and
small size of the article.
In applying these factors to the handles, it is clear
that a marking on the handle portion which remains exposed
after installation would be undesirable. It, therefore,
appears that the only other place to mark the handle is on
the round end portion of the handle. The marking is
approximately in 8 point type and in raised capital letters.
While the marking is not in contrasting lettering, it is our
opinion that considering the nature of the article, the
ultimate purchaser is likely to see the marking on the
handle. Based on the combination of these factors, we find
that the country of origin marking on the round end portion
of the handles satisfies the requirements of 19 CFR 134.41
and 19 U.S.C. 1304. If the handles are individually marked
as described above, there will be no need to follow the
repackaging certification procedures of 19 CFR 134.26 unless
the handles will be repackaged prior to sale to the ultimate
purchaser.
HOLDING:
On the basis of the information and samples submitted,
the ultimate purchaser of the handles will be the hardware
distributors and industry related manufacturers who
incorporate the handles into furniture and fixtures produced
in the U.S. Therefore, it is will acceptable to only mark
the outer container in which the hardware distributors and
industry related manufacturers receive the handles.
Additionally, the marking requirements will be satisfied if
the round end portion of the handle is marked in 8 point type
and in raised capital letters. If the handles are
individually marked as described above, the procedures of 19
CFR 134.26 shall be required only if the handles will be
repackaged by a subsequent purchaser prior to sale to the
ultimate purchaser.
A copy of this ruling letter should be attached to the
entry documents filed at the time the goods are entered. If
the documents have been filed without a copy, this ruling
should be brought to the attention of the Customs officer
handling the transaction.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division