MAR-2-05 CO:R:C:V 734331 GRV
Mr. Troy E. Clarke, President
CBT International Inc.
Customs Brokers
936 Mahar Avenue
Wilmington, CA 90744
RE: Location and method of denoting country of origin
marking on packaged (sealed) hand tool sets. Ultimate
purchaser; 19 CFR 134.1(d)(3); metal tools; articles
excepted; 19 CFR 134.32(d); C.S.D. 89-113; C.S.D. 89-
78; container marking; 19 CFR 134.22(a); conspicuous-
ness (visibility and location); 19 CFR 134.41(b);
C.S.D. 91-23; C.S.D. 83-79; C.S.D. 79-379; C.S.D. 88-
25; C.S.D. 90-41
Dear Mr. Clarke:
This is in response to your letter of August 6, 1991,
addressed to the Area Director of Customs in New York, on behalf
of Alltrade Inc., requesting a ruling regarding the country of
origin marking of packaged (sealed) hand tool sets imported from
various countries. Your letter and the sample hand tool packages
were forwarded to this office on September 5, 1991, for a direct
reply.
FACTS:
Variously retail-packaged tool sets are imported from
various countries. One of the sample sets--a 22-piece wrench
set--is packaged in a large (measuring approximately 13" by 23")
transparent plastic container (disposable) that is further
packaged in a cardboard box shrink-wrapped in clear plastic. The
clear plastic packaging allows the ultimate purchaser to view the
individual tools without opening the package. The other sample
set--a 40-piece metric tool & socket set--is packaged in a
smaller (measuring approximately 10" by 13") opaque plastic con-
tainer (a reusable carrying case) that is further packaged in a
cardboard sleeve also shrink-wrapped in clear plastic. Although
the ultimate purchaser cannot see the actual tools in this latter
type of packaged set, the tools are represented by a picture on
the cardboard sleeve that is wrapped within the outermost plastic
wrapping. Regarding the size of the two packages, we note that,
as the 40-piece set is twice is large as the 22-piece set, it is
more awkward to handle; each set weighing more than 5 pounds.
The tools in a given set are not individually marked to
indicate their country of origin. And although the cardboard
packagings denote the respective country of origin of the
imported hand tool sets, they are printed in various print sizes
and types and variously located on the packages. In the case of
the larger 22-piece wrench set, the country of origin marking
("MADE IN INDIA") is located on the back of the package in the
lower left-hand corner between references to the importer's U.S.
locations and other consumer and foreign carton printing infor-
mation, and printed in comparable capital letters in contrasting
colors in approximately 4-point type (1/16" letters). In the
case of the smaller 40-piece metric tool & socket set, the
country of origin marking ("MADE IN TAIWAN") is located on the
front side panel of the package in the left-hand corner between
references to the importer's U.S. locations and other consumer
information, but printed in contrasting color capital letters
that measure only approximately 3-point type (<1/16" letters).
You believe the packaged hand tools are properly marked,
based on certain prior rulings (C.S.D. 88-25, Headquarter Ruling
Letter 730567 and ORR Ruling 73-0022) and section 134.32(d) of
the Customs Regulations, which provides for package marking in
lieu of article marking, and request that we advise you as to
whether the enclosed samples are properly marked.
The National Import Specialist is of the opinion that
because the country of origin marking on the smaller 40-piece
tool set is so small (3-point type) it is neither conspicuous nor
legible, especially since it is sandwiched between references to
the distributor's U.S. locations and other consumer information,
whereas, the marking on the larger 22-piece wrench set, similarly
sandwiched between the same information, but presented in a 4-
point type, meets the country of origin marking requirements. No
opinion respecting the particular locations of the country of
origin markings was expressed.
No issue respecting the provisions of 19 CFR 134.46 are
presented by this ruling request.
ISSUE:
Whether the country of origin markings on either of the
plastic-wrapped hand tool sets meet the marking requirements of
19 U.S.C. 1304 and 19 CFR 134.41(b).
LAW AND ANALYSIS:
The marking statute, 304 of the Tariff Act of 1930, as
amended (19 U.S.C. 1304), provides that, unless excepted, every
article of foreign origin (or its container) 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 pur-
chaser the English name of the country of origin of the article.
Part 134, Customs Regulations (19 CFR Part 134), implements the
country of origin marking requirements and exceptions of 19
U.S.C. 1304.
The primary purpose of the country of origin marking statute
is to "mark the goods so that at the time of purchase the ulti-
mate purchaser may, by knowing where the goods were produced, be
able to buy or refuse to buy them, if such marking should influ-
ence his will." United States v. Friedlaender & Co., 27 CCPA
297, 302, C.A.D. 104 (1940).
The "Ultimate Purchaser" Consideration
The "ultimate purchaser" is defined generally as 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). Example (3) of this
section provides that if an article is to be sold at retail in
its imported form, the purchaser at retail is the "ultimate
purchaser." In this case, the retail consumer is the ultimate
purchaser, because (s)he will be last person in the U.S. to
receive the imported merchandise (tools) in the form (plastic-
wrapped container package) in which it is imported.
The Article Marking Exception
19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) provide that
if the marking of the containers will reasonably indicate the
origin of the enclosed imported articles, then the articles
themselves need not be individually marked. This exception is
applicable in cases where the article is imported in a properly
marked container and Customs officials at the port of entry are
satisfied that in all reasonably foreseeable circumstances the
ultimate purchasers will receive the article in its original,
unopened and properly marked container. C.S.D. 89-78.
In C.S.D. 89-113, we observed that an article imported in a
blister package for retail sale to the ultimate purchaser would
generally be excepted from individual marking under the provi-
sions of 134.32(d), since blister packaging are obviously
intended to remain with the article through its retail sale to
the ultimate purchaser. Accordingly, given that the containers
are shrink-wrapped in clear plastic in this case, we agree that
it may be acceptable to mark the country of origin of the tools
on the container in lieu of the individual tools themselves,
provided the container marking is conspicuous and reasonably
indicates the origin of the articles. 19 CFR 134.22(a) and
134.24(d)(1).
Conspicuous Marking
The clear language of 1304 requires 'conspicuous' marking,
and to this end 134.41(b) provides, in part, that the country of
origin marking is considered conspicuous if the ultimate purchas-
er in the U.S. is able to find the marking easily and read it
without strain. In this regard, we have noted that the concept
of conspicuousness embraces two concerns: (1) visibility, which
is concerned with the requirement that the marking must be able
to be found easily, and (2) legibility, which is concerned with
the requirement that the marking must be able to be read without
strain. We have also noted that, in general, information pre-
sented in boldface print and/or a large print size tends to draw
the ultimate purchaser's attention away from other information
that is presented in lightface type and/or a smaller print size.
Lastly, we have noted that the country of origin marking should
be presented in format that is conspicuous: made readily
apparent, 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.
C.S.D.s 91-23, 83-79 and 79-379.
Regarding the print size employed to denote the country of
origin marking, we have stated that where various print sizes and
types are employed to convey various information and the country
of origin marking is presented in the lightest-face print and/or
the size of the marking is very small (3-point type), the country
of origin marking is not easy to read and that it does not comply
with the marking requirements of 19 U.S.C. 1304 and 19 CFR
134.41(b). C.S.D.s 91-23, 83-79 and 79-379. And in the rulings
you rely on for the proposition that indicating the country of
origin marking on the backside of cardboard sleeves beneath the
U.S. address of the manufacturing company--HRL 730567 dated
August 26, 1987 and C.S.D. 88-25, we note that the print size
involved was slightly less than 9-point type, much larger than
the print size on the submitted samples.
Regarding the location of the country of origin marking on
blister packaged tools, although in C.S.D. 88-25 we found that
marking a kit containing twelve computer tools on the backside
of cardboard sleeves beneath the U.S. address of the manufac-
turing company was acceptable, in C.S.D.s 83-78 and 83-79 we
found the country of origin marking on the backside of certain
blister packaged tools--in small type and unbolded type where
other information was presented in bolded type--to be incon-
spicuously placed and not acceptable. In general, whether or not
a particular country of origin marking is considered conspicuous
is dependant on a combination of factors: where and how it
appears and whether other information is present. Where the
location of the marking is in issue, the concern is whether the
marking is in a place on the particular merchandise where the
ultimate purchaser could expect to find it or where (s)he could
easily notice it from a casual inspection/handling of the good.
Thus, size and weight of the merchandise may be relevant
considerations in a given case. See C.S.D. 90-41.
In this case, we find that the country of origin marking on
the 40-piece tool set, printed in 3-point print, is neither easy
to find nor read, and that the country of origin marking on the
22-piece tool set--although printed in 4-point print, which is
legible--is presented in the smallest type sandwiched between
other information and different, i.e., bolded, type-face, is hard
to read.
HOLDING:
The country of origin markings on the plastic-wrapped hand
tool sets are not conspicuous for different reasons and do not
meet the marking requirements of 19 U.S.C. 1304 and 19 CFR
134.41(b). In the case of the larger 22-piece set, although the
location of the marking on the bottom panel may be acceptable,
the print-size should be enlarged to make it more visible, as the
other information printed on the panel renders the country of
origin marking hard to find in the first instance. In the case
of the smaller 40-piece set, the print-size should be enlarged to
make it both more easy to find and read, as required by 19 U.S.C.
1304 and 19 CFR 134.41(b).
Sincerely,
John Durant, Director
Commercial Rulings Division