HQ 0733509 - Country of origin marking requirements for imported spray spray guns repackaged in the U.S. in retail containers; 19 CFR 134.32(d); 19 CFR 134.34 - United States International Trade Commision Rulings

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HQ 733509

July 24, 1991

MAR-2-05 CO:R:C:V 733509 AT

CATEGORY: MARKING

Joanne Muro, Vice President
Global International, Inc.
223-10 So. Conduit Avenue
Jamaica, New York 11413

RE: Country of origin marking requirements for imported spray spray guns repackaged in the U.S. in retail containers; 19 CFR 134.32(d); 19 CFR 134.34

Dear Ms. Muro:

This is in response to your letter dated May 11, 1990, on behalf of Automatic Spray Gun, Inc. (Spray Gun), in which you seek a prospective and binding ruling on the country of origin marking requirements for imported spray guns imported from Taiwan and repackaged in the U.S. in cardboard boxes.

FACTS:

You state that Automatic Spray Gun, Inc., imports spray guns made in Taiwan. You indicate that at the time of importation, each spray gun is imported in its own disposable cardboard box. After importation the spray guns are removed from these cardboard boxes by Spray Gun, tested and repackaged into marked retail containers to be delivered to retail stores. A sample of the spray gun and its retail container has been submitted. The spray gun is not marked with the country of origin. The retail container is marked "Made in Taiwan" on the backside of the box in lettering approximately 1/4 inch high (18 points). Directly below this, are the words "Distributed by: Automatic Spray Gun Co., Inc." Also imprinted on two separate side panels of the box are the words "Automatic Spray Co." On top of the box a picture of the spray gun is imprinted and next to it are the words "Automatic Spray Gun" with the model number "Model 10L" directly below. You claim that although the spray gun itself is not marked the retail container in which the spray gun is to be packaged in and which reaches the ultimate purchaser is, and therefore the spray gun should not have to be marked with the country of origin. You also indicated in a telephone conversation with a member of my staff on April 17, 1991, that

Spray Gun sells the product directly to retail stores and the retail stores sell the spray guns only in these retail containers which are individually marked "Made in Taiwan".

ISSUE:

Do the spray guns have to be individually marked with their country of origin if the retail container in which the gun is repackaged and sold in to the ultimate purchaser is marked with the country of origin?

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).

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. The definition then gives examples of who might be the ultimate purchaser if the imported article is used in manufacture, if the imported article is sold at retail in its imported form and if an imported article is distributed as a gift. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the spray guns is the consumer who purchases the product at retail.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article.

Accordingly, the marking of a container in lieu of the article itself is acceptable if the article is imported in a properly marked box and Customs is satisfied that in all foreseeable circumstances the article will reach the ultimate purchaser in a properly marked container.

The sample retail box is legibly, conspicuously and permanently marked to indicate the country of origin of the spray gun. The question remains as to whether the spray gun will reach the ultimate purchaser in this marked container. Although it is not sealed, it is clear from the illustration of the spray gun and model number that the product is designed to be sold to the ultimate purchaser in the cardboard box. Moreover, you indicate that this is how the spray guns are always sold to the retail stores. Accordingly, we find that the "Made in Taiwan" marking on the cardboard box, is easily visible and reasonably indicates the country of origin to the ultimate purchaser prior to purchase. Therefore, the spray guns may be entitled to the exceptions set forth at 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). See HQ 733678 (August 30, 1990), imported surgical towels repackaged in the U.S. in plastic and paper containers which were properly marked with the country of origin and which would reach the ultimate purchaser in these containers was entitled to the exception set forth at 19 CFR 134.32(d); HQ 722727 (October 21, 1983), various replacement automotive parts individually wrapped in containers which bear the proper country of origin marking and part number and which will reach the ultimate purchaser in these containers are excepted from individual marking by the exceptions set forth at 19 CFR 134.32(d).

However, since the imported spray guns are not imported in the retail box, whether the spray guns are excepted from individual marking under 19 CFR 134.32(d) is for the district director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized in the discretion of the district director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

HOLDING:

As long as the conditions set forth in 19 CFR 134.34 are met, the district director may authorize an exception from marking the individual spray guns pursuant to 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d), if the retail box in which the spray gun is repackaged in is properly marked with the country of origin of the imported spray gun. The submitted sample retail container is properly marked.

Sincerely,

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