HQ 0732229 - Country of origin marking requirements for imported swim caps - United States International Trade Commision Rulings

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HQ 732229

June 14, 1989

MAR 2-05 CO:R:C:V 732229 pmh

CATEGORY: MARKING

Mr. Duncan A. Nixon
Sharretts, Paley, Carter & Blauvelt
67 Broad Street
New York, N.Y. 10004

RE: Country of origin marking requirements for imported swim caps

Dear Mr. Nixon:

This is in response to your letter dated March 14, 1989, on behalf of your client, Warnaco Inc. (the importer), requesting a ruling on country of origin marking requirements for imported swim caps.

FACTS:

You indicate that the swim caps are imported in bulk from Canada and that after importation and prior to resale in the U.S., the caps will be repackaged individually in envelope-style cardboard cartons. A sample swimcap and a sample retail carton have been submitted for examination. The sample swim cap is made of gold-colored rubber. The word "SPEEDO" appears twice on the outside of the cap and is printed in black letters approximately 1/2 inch in size. The words "Made In Canada" are embossed on the inside rim of the swimcap in letters approximately 1/8 of an inch in size.

The sample retail carton is white and approximately ten inches long and 3 1/2 inches wide. On the front of the carton are the word "SPEEDO Silicone Swim Cap" and a brief physical description of the cap. On the back panel of the carton are the word "SPEEDO" and instructions on the care of the swim cap. Below the word "SPEEDO" appears additional information, including the words "Speedo America, Portland, OR 97206," brief information regarding that company and the words "Manufactured in Canada." All of this information is in dark grey lettering approximately 1/16 of an inch in size.

You assert that the individual swim caps are properly marked in accordance with country of origin marking requirements because the mark is permanently embossed on the cap and is in a location that is sufficiently conspicuous for marking purposes. In the alternative, you assert that if the swim caps are not properly
marked they should be excepted from marking requirements based on the fact that they are repackaged after importation in containers which reasonably indicate the country of origin.

ISSUE:

Whether the subject swim caps are properly marked in compliance with 19 U.S.C. 1304.

Whether the swim caps qualify for an exemption from the country of origin marking requirements because they will reach the ultimate purchaser in containers that are properly marked.

LAW AND ANALYSIS:

With regard to the first issue, 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 as 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. 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, Customs Regulations (19 CFR 134.41), provides that the marking of an imported product must be conspicuous enough so that the ultimate purchaser will be able to find the marking easily and read it without strain.

After careful examination of the submitted sample swim cap, we are of the opinion that the country of origin marking is not conspicuous. While embossing may sometimes be an acceptable method of marking, due to the fact that the words "Made In Canada" are embossed so lightly on the inside rim of the swim cap, are so small and are of the same color as the swim cap rather than a contrasting color, they are barely visible. It is difficult to read the words even when you know where to look for them. Consequently, the country of origin mark on the swim caps does not meet the standard set forth in 19 CFR 134.41 and does not comply with 19 U.S.C. 1304.

With regard to the second issue, it is argued that the swim caps should be exempted from country of origin marking requirements based on the fact that they are sold to the ultimate
purchaser in containers that are properly marked to indicate the country of origin. Section 134.32(d), Customs Regulations (19 CFR 134.32(d)), which has been cited in support of this argument, reiterates the statutory exemption from marking set forth in 19 U.S.C. 1304(a)(3)(D). Both the law and regulations provide for an exemption from marking for articles for which the marking of the container will reasonably indicate the origin of the articles. However, section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception under 19 CFR 134.32(d), may be authorized in the discretion of the district director for imported articles which are to be repacked after release from Customs custody under certain specified conditions. One of these is that the district director must be absolutely satisfied that, if unmarked articles will be repacked in the U.S., the new containers will properly indicate the country of origin of the articles to an ultimate purchaser in the U.S. Based on our examination of the sample retail carton, we are of the opinion that the country of origin marking on the carton would indicate the origin of the articles to an ultimate purchaser. Consequently, we suggest you contact the Customs office in Champlain, N.Y. and submit a sample retail carton for examination. We will furnish a copy of this ruling to that office for their information.

HOLDING:

A swim cap which is marked by means of embossing the name of the country of origin in letters 1/16 of an inch on the inside rim of the cap so lightly that they are barely visible is not properly marked according to 19 U.S.C. 1304 and 19 CFR 134.41. Swim caps may be excepted from marking if the individual containers in which the swim caps are sold to the ultimate purchaser are marked in the same manner as the sample carton submitted. However, if the swim caps are repacked in such cartons after importation, appropriate arrangements must be made with the local district director of Customs, pursuant to 19 CFR 134.34, for an exception from individual marking of the swim caps.
Sincerely,

Marvin M. Amernick

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