HQ 0731701 - Country of Origin Marking of Childrens' Computer Games - United States International Trade Commision Rulings

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HQ 731701

January 26, 1990

MAR-2-05 CO:R:C:V 731701 NL

CATEGORY: MARKING

Julie Bosse
Director of Operations
INTEG, Inc.
2674 North First St.
San Jose, California 95134

RE: Country of Origin Marking of Childrens' Computer Games

Dear Ms. Bosse:

This is in response to the letters of August 19 and September 14, 1988, requesting a ruling regarding the country of origin marking requirements applicable to a childrens' computer game imported by your company. We regret the delay in responding.

FACTS:

The article in question is the "JC Junior Computer" with separately packaged cartridges. It is a computer game with keyboard format. In a conversation with a member of my staff you stated that the computer is manufactured in China and packaged in Hong Kong. A sample was submitted.

During 1988 entries were made in San Francisco and St. Louis. Customs officials in each location indicated that the articles were not clearly and conspicuously marked with their country of origin as required by section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304). The Junior Computer had no country of origin marking on the article, other than a sticker on the bottom which gives the name of the article, its serial number, the battery requirements, a reservation of rights, and the words "Printed in Hong Kong". The article's container had the marking, "Made in Hong Kong/China as indicated on article". The package also had the words, "Marketed by Fun Quest/ INTEG, Inc., San Jose, CALIF". The cartridges had no country of origin marked on them or on their packaging.

After consultation with a customs official in San Francisco, a new sticker was added to the outside of the packaging of the computer and the packaging of the cartridges to bring the country of origin marking of the articles into compliance with 19 U.S.C. 1304. The sticker was placed so as to cover the name "San Jose, CALIF". The sticker replicates the name "San Jose, CALIF", followed in larger lettering by "MADE IN CHINA". The letters
state that with respect to the 1988 entries, Customs officials were satisfied that this marking on the packaging was adequate, and permitted the articles themselves to be excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), which provide that an article may be excepted from country of origin marking if the marking on its container will reasonably indicate the article's country of origin.

The 1988 entries have been cleared, but a ruling that this marking complies with the country of origin marking requirements of 19 U.S.C. 1304 is requested for future transactions.

ISSUE:

Does the above-described country of origin marking comply with the requirements of 19 U.S.C. 1304?

LAW & 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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Section 134.1(b), Customs Regulatons (19 CFR 134.1((b), provides that "country of origin" means the country of manufacture, production, or growth of the article. Based on your representations that the article is manufactured in China, then packaged in Hong Kong, the country of origin of the Junior Computer is China. Section 134.1(a), Customs Regulations (19 CFR 134.1(a), provides that "country" means the political entity known as a nation. Section 134.1(a) further provides that colonies, possessions or protectorates outside the boundaries of the mother country are considered separate countries. For purposes of the country of origin marking requirements, Hong Kong is a separate country from China. The marking on the outside of the package stating, "Made in Hong Kong/China as stated on article", when the article itself has no country of origin marking does not satisfy the requirements of 19 U.S.C. 1304(a), since the ultimate purchaser is not given a clear indication of the article's country of origin.

Moreover, the presence on the package of the sticker stating, "Made in China" adds to the potential confusion of the
ultimate purchaser, since he would not know which statement of article's country of origin is accurate. To satisfy the requirements of 19 U.S.C. 1304, the reference to "Hong Kong/China" would need to be removed, or clarified by the statement, "Made in China, Printed and Packed in Hong Kong".

The sticker on the bottom of the computer, which reads "Printed in Hong Kong", does not comply with the requirements of 19 CFR 134.46, which provides that in any case in which the name of a foreign country or locality other than the country of origin appears on the article, the name of the country of origin of the article must appear, in close proximity and in lettering of at least comparable size, preceded by the words "Made in", "Product of", or words to similar effect. To conform to the requirements of 19 CFR 134.46, the words "Made in China" or "Product of China" must appear in close proximity to, and in lettering of comparable size, to the name "Hong Kong". In the alternative, the requirements could be avoided by removing the reference to Hong Kong from the sticker.

In view of the conflicting marking on the packaging, we are unable to approve an exception from country of origin marking for the computer on the basis of 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), since the country of origin of the article is not reasonably indicated on its container. Accordingly, the article itself must be legibly, conspicuously and permanently marked with its country of origin, China.

However, if the confusing indications of country of origin on the box were removed, and the sticker which violates 19 CFR 134.46 were removed, our opinion would be otherwise. In that event, we could approve an exception from country of origin marking pursuant to 19 CFR 134.32(d) for the computer itself, since the country of origin marking on the container would afford a reasonable indication of the country of origin of the computer. Upon examination of the sample computer and its packaging, we are persuaded that this exception is warranted by the fact that the packaging (with its country of origin marking) is such that it will stay with the article until it reaches the ultimate purchaser in the U.S.

HOLDING:

1) The marking "Hong Kong/China on the computer's container does not clearly indicate the country of origin of the article. The addition of the sticker does not remedy the situation, since the container would then have two country of origin statements which are not consistent. To comply with the country of origin marking requirements the reference to "Hong Kong/China" must be removed entirely.

2) The name "Hong Kong" appearing on the sticker on the bottom of
the computer must be accompanied by the words "Made in China" or "Product of China" or words to similar effect.

3) The article may not be excepted from individual country of origin marking since the marking of its container does not reasonably indicate the country of origin of the article.

4) The article itself could be excepted from country of origin marking pursuant to 19 CFR 134.32(d) if the confusing markings on the packaging and the sticker on the bottom of the article were removed or remedied in accordance with this ruling.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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