MAR-2 RR:NC:N2:221 L88035
Ms. Senta Schreiber
BDG International Inc.
840 Tollgate Road
Elgin, IL 60123
RE: COUNTRY OF ORIGIN MARKING OF IMPORTED TRIANGULAR
REFLECTIVE SIGNS FROM CHINA
Dear Ms. Schreiber:
This is in response to your undated letter, received in this office on October 6, 2005, on behalf of Sate-Lite Manufacturing Co., requesting a ruling on the country of origin of reflective caution triangles. The two samples submitted with your letter for review are not marked with any country of origin, but are embossed with the word “Chicago” on each arm of the triangle.
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 (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 purchaser in the U.S. 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. 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. Section 134.1(d) defines the ultimate purchaser 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)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. 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 19 CFR 134.35.
Two samples were included with your request. Both are reflective warning triangles consisting of three sections riveted together. Each section is molded from orange colored plastic material and contains a reflective red plastic lens. The triangle can be folded so that it is easily stored. One triangle is designed for window mounting and is complete in the condition as imported. The other triangle will be assembled after importation to a base that is weighted with steel shot. You state that the base and all of its components are made in the United States.
The window mount reflective triangle is imported in its finished condition, and the ultimate purchaser is the retail customer. The swivel mount reflective triangle that will be assembled onto the U.S. origin base is not substantially transformed as a result of the U.S. processing, and therefore the ultimate purchaser of the imported triangle is the retail customer who purchases the complete triangle with stand. Both styles of imported triangles should 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.
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.
With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
The samples are embossed on each segment of the triangles with the words “SATE-LITE CHICAGO.” Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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 locality 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, appears 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. In such a case, 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.
In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears. The words “Made in China,” “Product of China,” or words of similar meaning must appear in close proximity to any references to Chicago.
Currently, the signs are marked with instructions and other identifying information in “blind” marking, i.e., in raised letters but not in contrasting color. As provided in section 134.41(b), Customs Regulations (19 C.F.R. 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. In HQ 733940, of October 24, 1991, Customs Headquarters described 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 C.F.R. 134.41 and 19 U.S.C. 1304. Among the factors that should be considered are 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 purchaser can easily see the marking without strain. The location of the marking should be in a place where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual 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.
No single factor should be considered conclusive by itself in determining whether a marking meets the conspicuous requirement of 19 C.F.R. 134.41 and 19 U.S.C. 1304. Instead, it is the combination of these factors that 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.
The blind printing that appears on the reflective portion of the sign is small and difficult to see. It is not in a contrasting color and does not stand out. Blind marking in this size and in the reflective portion of the sign would not satisfy the country of origin marking requirements. Most of the blind printing that appears on the non-reflective surface is also too difficult to see. Printing in this size is not acceptable unless it is in a contrasting color. The large letters, ranging in size from ¼ inch to ½ inch in height, used for the words “Sate-Lite 711 Chicago” that appear on the bottom segment of each triangle are much more highly embossed and conspicuous. Country of origin marking in this size lettering and in this highly embossed manner would be acceptable marking even if not in a contrasting color.
The importer has indicated that the triangles with stands may be marketed in sets of three packaged inside plastic storage containers. Section 134.26 of the Customs Regulations (19 CFR 134.26) 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 has reason to believe that such article will be repacked after its release, the importer shall certify to the port director that 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.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at 646-733-3023.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division