HQ 0733836 - Marking of Pens and Mechanical Pencils; Marking of Unsealed Gift Packages; 19 CFR 134.32(d); 19 CFR 134.34. - United States International Trade Commision Rulings

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HQ 733836

February 11, 1991
MAR-2-05 CO:R:C:V 733836 NL

CATEGORY: MARKING

Jerry P. Wiskin, Esq.
Freeman, Wasserman & Schneider
90 John Street
New York, NY 10038

RE: Marking of Pens and Mechanical Pencils; Marking of Unsealed Gift Packages; 19 CFR 134.32(d); 19 CFR 134.34.

Dear Mr. Wiskin:

This is in response to your letter of October 8, 1990, and your supplemental submission of February 6, 1991, in which you request a ruling concerning the sufficiency of the country of origin marking for certain pen and mechanical pencil sets sold in gift boxes.

FACTS:

Your client, the Faber Castell Corporation, imports pens and pencils from Japan. The articles in question are named "Pocket Compo" and "Mini Compo I & II". In various ways each article combines the functions of pens, pencils, and in some cases indelible markers. The name "Japan" appears in raised lettering on the side of the barrel of each writing instrument. Samples were submitted.

After bulk importation the pens are packaged by the Faber Castell Ad Specialty Division in Lewisburg, Tennessee. The Pocket Compo is sold in a silverized cardboard container (not sealed). The name "Japan" conspicuously appears on a sticker affixed to one of the end flaps. The Mini Compo I and II are imported and sold in cardboard containers upon which appear the words "A Gift for You". Each container (not sealed) is conspicuously marked "Japan" by means of a sticker affixed to one end flap. Enclosed in the packages with the pens are flyers describing the properties and operation of the products. You represent that these articles as packaged are sold at wholesale as promotional items to be given away by their purchasers. Faber Castell is prepared to submit certifications to the effect that all the articles addressed in this ruling request will be packaged and sold as described above, and will not be sold without their packaging.

You advance two positions concerning the marking of these articles. First, you contend that the marking on the cardboard containers is sufficient marking of the articles. We presume you are referring to the exceptions from marking provided at 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), which provide generally that an article may be excepted from country of origin marking if the marking on its container reasonably indicates the country of origin of the article.

Secondly, it is your position that the marking of the pens themselves by raised lettering constitutes conspicuous marking within the meaning of 19 U.S.C. 1304(a). Customs, as discussed below, agrees with your position that the marking of the container is sufficient to satisfy the marking requirements as to the pens, and thus will not at this time address whether the marking of the pens is conspicuous within the meaning of 19 U.S.C. 1304 and the Regulations.

ISSUE:

May the pens be excepted from country of origin marking on the basis that the marking of the containers is sufficient to indicate their 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.

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

With regard to the marking of containers, 19 CFR 134.32(d) implements the statutory exception by providing that an article may be excepted from marking if the marking on its container will reasonably indicate the article's country of origin. Normally this exception has been available if Customs is satisfied that in all foreseeable circumstances the article will reach the ultimate purchaser in the original marked unopened container in which it was imported. A related exception is provided under 19 CFR 134.34, and is applicable to articles which are to be packed after importation in retail containers qualifying for the former exception set forth at 19 CFR 134.32(d). In such cases, the district director must be satisfied that the repacking will be done in accordance with all marking requirements, and in his discretion he may require the importer/repacker to give undertakings that this will be done.

In this case, the issue arises whether the marked, unsealed cardboard packages containing each pen or pen set will in all foreseeable circumstances reach the ultimate purchaser, such that the marking on the package affords him a reasonable indication of the origin of the pen or pen set. Insofar as the article is a gift item, the ultimate purchaser is the recipient of the gift. See, Pabrini, Inc., v. U.S., 630 F. Supp. 360 (CIT 1986). It is our opinion that in this case the district director, pursuant to 19 CFR 134.34, would be justified in finding that the recipient of the gift/promotional item will receive it in the properly marked package. The certification of the importer, Faber Castell, would be of considerable weight in this regard. We also believe that the presence of the instructional flyer in the gift package is strong evidence that the pen is not intended to be separated from its packaging, and would be diminished in value and utility without it.

In sum, the pens are eligible to be excepted from country of origin marking pursuant to 19 CFR 134.34, provided the district director is satisfied that under all circumstances they will be packaged after importation as described above. In his discretion the district director may require the importer to give assurances satisfactory to him that the repackaging will be conducted as represented.

HOLDING:

Certain pens, packaged after importation in gift boxes, are eligible to be excepted from country of origin marking pursuant to 19 CFR 134.34 in the discretion and subject to the supervision of the district director.

Sincerely,

John Durant, Director
Commercial Rulings Division

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