HQ 0732122 - Country of origin marking requirements applicable to small rubber balls to be dispensed through vending machines - United States International Trade Commision Rulings

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HQ 732122

January 26, 1990

MAR-2-05 CO:R:C:V 732122 jd

CATEGORY: MARKING

District Director of Customs
40 South Gay Street
Baltimore, Maryland 21202

RE: Country of origin marking requirements applicable to small rubber balls to be dispensed through vending machines

Dear Mr. Beikirch:

This is in response to your memorandum (MAR-2-DD:CO:TT:IS:1 RPS), dated January 20, 1989, concerning the country of origin marking requirements applicable to small rubber balls to be dispensed through vending machines. We regret the delay in responding.

FACTS:

You were contacted by the Parkway Machine Corporation concerning the marking requirements for small rubber balls. The balls, known as "HI BOUNCE BALLS," are made by injection mold. We received samples of various balls in the 27 and 35 millimeter sizes. The balls come in either one color or multicolored, and come either smooth or "frosted."

The balls have the word "TAIWAN" molded onto their surface in very slightly raised, noncontrasting lettering. The lettering is difficult to locate and read on the smooth balls, and is worn off by the texturizing process in the "frosted" balls. The importer states that marking by individual stickers or ink stamping is impossible since the balls are sprayed with silicone to make them dispense properly from vending machines and the silicone would not permit label adhesion and would cause any ink applied to smear. You state your opinion that a contrasting molded marking would probably be cost prohibitive considering the low value of each ball, and also state that individual packaging would most likely be similarly cost prohibitive. We would add that considering the nature of how these items will reach ultimate purchasers, i.e., in vending machines, it would only be through happenstance that individual marking of a ball would show through the window of a vending machine and that the purchaser would receive the exact ball so seen.

According to your memorandum, past shipments of such items have been permitted entry upon an importer's certification that the vending machine used to dispense the items would display a
notice disclosing the country of origin of the items within. In this regard, we observed two sample display cards submitted which are placed in the window of vending machines used to sell these balls. Both cards display the words "MADE IN TAIWAN" near the bottom of the card.

ISSUE:

May the country of origin marking requirements applicable to small rubber balls to be dispensed in a vending machine be satisfied by disclosure of the origin of the balls on a display card that will be visible through a window of the vending machine?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), generally requires that every article of foreign origin (or its container) imported into the United States 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 an ultimate purchaser in the United States the English name of the country of origin of the article.

As a threshold matter, we determine that none of the balls are properly marked. The "frosted" balls are not properly marked since any marking that existed is removed during the frosting process. The marking on the smooth balls is not conspicuous; it is not easy to locate and once found can only be read with difficulty.

We agree with your position that the vending machine in which these balls are presented for sale to ultimate purchasers may be considered a "container" as that word is used in marking regulations. Accordingly, pursuant to { 134.32(d), Customs Regulations (19 CFR 134.32(d)), the articles may be excepted from individual marking provided marking on the container will reasonably indicate the origin of the balls. We find that the disclosure of origin on the card placed in the window of the vending machine is adequate, provided the words are moved to a more conspicuous location on the card. A member of my staff observed a vending machine with one of the sample cards inside at a local grocery store, and the bottom of the card was obscured by the metal frame around the window.

HOLDING:

Small rubber balls presented for sale to ultimate purchasers in a vending machine may be excepted from individual marking provided a display card visible through a window of the vending machine is imprinted in a conspicuous location with the origin of the balls being dispensed. Certification by the importer as per { 134.25, Customs Regulations (19 CFR 134.25), that such card will, in fact, be displayed, is required. You indicate you have been requiring such a certificate and you should continue to do so.

Sincerely,

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