HQ 0731491 - Country of origin marking requirements for plastic spiral bindings - United States International Trade Commision Rulings

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HQ 731491
June 13, 1989

MAR-2-05 CO:R:C:V 731491 KG

CATEGORY: MARKING

Frank A. Vida
Brenco Inc.
2301 Scott
Laredo, Texas 78040

RE: Country of origin marking requirements for plastic spiral bindings

Dear Mr. Vida:

This is in response to your letter of June 7, 1988, requesting a ruling on the proper country of origin marking of plastic spiral bindings made in Mexico. We regret the delay in responding to your inquiry.

FACTS:

Your client plans to manufacture plastic spiral bindings in Mexico. The final plastic rolled bindings are boxed and exported to the U.S. where they are sold directly to customers or to distribution centers in units of 25 pieces, 100 pieces, 1000 pieces and in bulk generally over 1,500 pieces. A bookstore, office supply store, or any retail establishment can purchase the bindings from a distribution center and sell them on an individual basis to a retail customer. Your client wants to mark the country of origin on the box rather than the individual spiral bindings.

ISSUE:

Whether plastic spiral bindings are excepted from individual country of origin marking requirements pursuant to 19 U.S.C. 1304.

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 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., 27 C.C.P.A. 297 at 302 (1940).

Section 304(a)(3)(D) of the Tariff Act of 1930, as amended (19 U.S.C. 1304(a)(3)(D)), excepts from individual marking requirements any article for which the marking of the container will reasonably indicate the 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 134.32(d), Customs Regulations (19 CFR 134.32(d)), reiterates the exception contained in 19 U.S.C. 1304(a)(3)(D).

The exception set forth in 19 U.S.C. 1304(a)(3)(D) applies in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser will receive it in its original unopened marked container. See HQ 731768 (December 8, 1988). The ultimate purchaser is defined in section 134.1(d), Customs Regulations (19 CFR 134.1(d)), as the last person in the U.S. to receive the article in the form in which it was imported. In the instance where a shipment is going to a customer who has ordered the bindings in a large quantity for its own use in binding, or for resale only in full box quantities, and the bindings will be sent to the customer in boxes, the importer can mark the boxes rather than the individual binding. However, if a retail customer could purchase a single spiral binding from a retail establishment and possibly not see the box, the individual bindings must be marked. In those instances, the individual bindings may be marked by stamping, stickers, string tags or any other method that satisfies the requirements of 19 U.S.C. 1304.

An exception from the marking requirement is authorized pursuant to 19 U.S.C. 1304(a)(3)(H) where an ultimate purchaser, by reason of the character of the article or by reason of the circumstances of its importation, must necessarily know the country of origin of the article even though it is not marked to indicate its origin. This exception is one of the general exceptions to marking requirements provided for in section 134.32(b), Customs Regulations (19 CFR 134.32(b)). In ruling 730243 (March 5, 1987), Customs required that the importer be the ultimate purchaser of the imported article and have direct contact with the foreign supplier to qualify for the 19 U.S.C. 1304 (a)(3)(H) exemption. In this instance, there is no evidence of any situation in which a U.S. customer has direct contact with the foreign supplier. Further, the importer is not the ultimate purchaser of the bindings. The bindings are sold by the importer either directly to a customer or sent to a distribution center which sells the bindings. Therefore, the imported article can not be excepted from the country of origin marking requirement under 19 U.S.C. 1304(a)(3)(H).

HOLDING:

Spiral bindings imported from Mexico in boxes that may be sold to an ultimate purchaser unboxed are not excepted from the individual country of origin marking requirements pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). If a shipment of boxed spiral bindings is being sent to an ultimate purchaser in the U.S. and will reach the ultimate purchaser in the box, it is acceptable pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) to mark the country of origin on the box.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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