MAR-02 RR:CR:SM 561023 RSD
Francis J. Sailer, Esq.
Dickstein, Shapiro, Morin & Oshinsky
2101 L Street, NW
Washington, D.C. 20037-1526
RE: Country of origin marking of multi-color ball point pens;
conspicuous marking; legible; blister packs; repacking
certification; 19 CFR 134.26; 19 CFR 134.41; 19 CFR 134.44; and 19 CFR 134.46
Dear Mr. Sailer:
This is in response to your letter dated May 27, 1998,
requesting a ruling on behalf of Pentech International, Inc.
("Pentech") concerning the country of origin marking of multi-color pens to be imported from China. Your request for expedited
review has been granted. Two sample pens, one pen unpackaged and
the other pen packaged in a blister pack accompanied your
submission.
FACTS:
Pentech intends to import 10-color ball point pens from
China through the port of New York. The pens will be sold under
the trade name "FIRE WORKS!". It is anticipated that the pens
will be imported in multiple bulk shipments. At the time of
importation, a sticker showing the country of origin of the pens
will be attached to each pen. In addition, the outermost bulk
containers of the pens will be marked with the country of origin
of the pens.
After importation, the pens will be repacked into individual
blister packs. Pentech indicates that it intends to file a
certification with Customs stating that it will repack the
merchandise in retail containers while the merchandise is still
in its possession and that the new containers will be marked with
the country of origin of the pens in a conspicuous place as
legibly, indelibly, and permanently as the nature of article or
the containers will permit.
Sample A is an unpackaged pen. It is marked with its
country of origin on a sticker wrapped around the pen. The
sticker also shows the trade names "PENTECH" and "FIRE WORKS".
While the trade names are printed horizontally, the country of
origin marking, "CHINA", is printed vertically. Sample pen B is
packed inside a blister pack. The country of origin marking on
the sticker placed on the individual pen is obscured and cannot
be seen through the plastic. The country origin marking for the
pen, "Made In China" is on the bottom of the back of the placard
of the sample blister pack. This country of origin marking is in
black lettering against a gray and white background and is
directly underneath Pentech's U.S. address, "Edison, NJ 08817".
The marking is in the same size lettering as the "Edison NJ"
reference.
ISSUE:
Whether the country of origin marking on the sample pen and
sample blister pack as described above satisfies the country of
origin marking law.
LAW AND ANALYSIS:
The marking statute, 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 United States
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 United States 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, 302 (1940).
Part 134 of the Customs Regulations implements the country
of origin marking requirements and exceptions of 19 U.S.C. 1304.
Section 134.41(b), mandates that the ultimate purchaser in the
United States must be able to find the marking easily and read it
without strain. That section further provides that the degree of
permanence should be at least sufficient to insure that in any
reasonably foreseeable circumstance the marking shall remain on
the article until it reaches the ultimate purchaser unless it is
deliberately removed.
In Headquarters Ruling Letter (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 and,
therefore, did not 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.
Upon review of sample pen A, we find that the country of
origin marking on the pen is sufficiently conspicuous and legible
to satisfy the requirements of 19 CFR 134.41(b). The country of
origin marking is printed on a sticker near the trade name of the
pen and it can easily be noticed from a casual inspection of the
article. The marking is in contrasting color so it stands out
and the letters are large enough so that they can be read without
strain. Accordingly, we find that the marking on the pen is
acceptable.
However, you indicate that the pens will be repacked after
importation and sold in blister packs. In most cases, the
marking on the pens will be obscured by the blister packs. This
is shown by sample Pen B where the country of origin marking on
the pen itself is not visible. Therefore, to ensure that the
ultimate purchaser is informed as to the country of origin of the
pens, Pentech submits that it will follow the procedures of 19
CFR 134.26. 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....
For sample pen B, the country of origin is printed near the
bottom of the back of the placard of the blister pack. We also
find that the county of origin marking on the blister pack for
sample pen B is sufficiently legible and conspicuous to satisfy
the requirements of 19 CFR 134.41(b) and is otherwise acceptable.
Because a non-origin geographical reference, "Edison NJ",
also appears on the blister pack, the remaining issue is whether
the country of origin marking complies with section 134.46,
Customs Regulations (19 CFR 134.46). 19 CFR 134.46 contains more
restrictive marking requirements designed to alleviate the
possibility of misleading an ultimate purchaser with regard to
the country of origin of an imported article. Treasury Decision
(T.D.) 97-62, published in the Federal Register on August 20,
1997 (62 Fed. Reg. 44211), amended section 134.46 to ease the
requirement that whenever words appear on imported articles
indicating the name of a geographic location other than the true
country of origin of the article, the country of origin marking
must appear in close proximity and in comparable size lettering
to those words preceded by the words "Made in," "Product of," or
other words of similar meaning. Effective September 20, 1997,
the revised section 134.46 provides that:
In any case in which the words "United States," or
"American," the letters "U.S.A.," any variation of such
words or letters, or the name of any city or location
in the United States, or the name of any foreign
country or locality other than the country or locality
in which the article was manufactured or produced
appear on an imported article or its container, and
those words, letters or names may mislead or deceive
the ultimate purchaser as to the actual country of
origin of the article, there shall appear legibly and
permanently in close proximity to such words, letters
or name, and in at least a comparable size, the name of
the country of origin preceded by "Made in," "Product
of," or other words of similar meaning.
The country of origin marking on the blister pack is printed
on the line immediately below the "Edison NJ" reference. The
letters in the country of origin marking are printed in the same
size as the letters of "Edison NJ", and the words "Made In"
immediately precede the country of origin, China. Therefore, the
country of origin marking on the sample blister pack satisfies
the requirements of 19 CFR 134.46.
HOLDING:
Based on the information provided, the country of origin
marking as demonstrated by the sample pen is sufficiently legible
and conspicuous to satisfy the requirements of 19 CFR 134.41.
Because the pens will be repacked after importation, the
procedures of 19 CFR 134.26 must be followed. The country of
origin marking as shown by the sample blister pack is legible and
conspicuous and satisfies the requirements of 19 CFR 134.46.
Therefore, the proposed country of origin markings for the
imported multi-color pens are acceptable under 19 U.S.C. 1304.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is 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
Commercial Rulings Division