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HQ 734049


June 17, 1991

MAR-2-05 CO:R:C:V 734049 GRV

CATEGORY: MARKING

Mr. Alan L. Bloch
Bloch New England
18 Sherman Street
Worcester, MA 01610

RE: Country of origin marking of whisk brooms. 19 CFR 134.11; article marking; 19 CFR 134.41; primary method of marking article (cold stamping in same color); conspicuousness (legibility); contrasting colors; secondary marking with paper labels; 19 CFR 134.44(b)

Dear Mr. Bloch:

This is in response to your letters of February 13, and May 21, 1991, requesting a country of origin marking ruling regarding whisk brooms. A sample of a whisk broom, as currently marked, was submitted for examination.

FACTS:

The following facts were developed in a phone conversation between you and a member of my staff on May 21, 1991:

1. Prior to January 18, 1991, your company imported bulk- shipped whisk brooms from Hungary through the port at Boston. (Based on the sample submitted, the whisk broom measures less than twelve inches in length and has a wire hanger attached to a round metal cap, which is affixed to the handle of the broom. The round metal cap is not affixed so tightly that it cannot pivot freely about the broom handle). The country of origin marking was cold stamped--a post-manufacturing method of marking that leaves a non-inked impression on the article in the same color as the article itself--on the round metal cap in inch print (18-point print size; a point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 in., and all type sizes are multiples of this unit. For an understanding of the print size/type terms referenced here, see the entry under "Type (printing)" in volume 18 of McGraw-Hill Encyclopedia of Science & Technology (6th ed., 1987), or the entry under "Printing" (in pre-1985) or "Printing, Topography and Photoengraving" (printings since 1985) in volume 14 of The New Encyclopaedia Britannica (15th ed., 1975)).

2. The initial, cold stamp marking is accomplished by impressing letters with a flat die stamp against the round metal cap. This procedure enables only the middle letters of the marking to be impressed sufficiently deep enough to be legible; the letters at both ends of the stamped marking, being impressed at an angle, are not so deep, which renders them faint and hard to read.

3. In January of this year Customs officers informed you that the merchandise was not legally marked and a marking notice was issued regarding the conspicuousness of the country of origin marking on the whisk brooms. Customs Officers at the Boston Port informed you that die stamping the country of origin marking with contrasting colors and/or secondarily marking the imported brooms with paper sticker labels would render the merchandise conspicuously marked for Customs purposes.

4. In correspondence with the Boston Port dated February 13, 1991, you stated that on all future shipments, the country of origin would be printed on UPC labels that are placed around the necks of the whisk brooms and that you would seek the present country of origin marking ruling through Customs Headquarters.

Because of the recurring marking problem presented by this merchandise, and at the insistence of the Boston Port, you have requested a ruling concerning the present country of origin marking scheme on the metal caps of the whisk brooms and ask our opinion regarding whether it complies with the marking requirements of 19 U.S.C. 1304.

ISSUE:

Whether the present country of origin marking cold-stamped onto the round metal cap of the whisk brooms is conspicuous, as required by 19 U.S.C. 1304 and 19 CFR 134.41.

LAW AND ANALYSIS:

The marking statute, section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit in such a manner as to indicate to the ultimate purchaser 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.
The primary purpose of the country of origin marking statute 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 CCPA 297, 302, C.A.D. 104 (1940). The clear language of section 1304 requires 'conspicuous' marking, and to this end section 134.41, Customs Regulations (19 CFR 134.41), further provides, in part, that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Further, we note that the concept of conspicuousness embraces two concerns: (1) visibility, which addresses the requirement that the marking must be able to be found easily, and (2) legibility, which addresses the requirement that the marking must be able to be read without strain. As no issue respecting visibility is presented--the cold stamp method of marking merely leaves an incomplete impression of the country of origin on the round metal cap, we address the outstanding issue of legibility presented by this marking method.

Regarding the initial, cold stamp marking of the metal cap with the country of origin

As the whisk brooms have metal caps as part of their design, it is appropriate that the country of origin is indicated by means of cold stamping it onto this metal portion of the imported article. See, 19 CFR 134.41(a) (it is suggested that the country of origin on metal articles be die sunk, molded in or etched). The problem presented in this case however is that the die stamp --a flat piece of metal--cannot make full contact with the metal cap--a round piece of metal. Thus, only where the two metal surfaces come into full contact, normally in the middle of the die stamp, is the designated country of origin clearly impressed onto the round metal cap; the outside edges of the die stamp, not making full contact with the metal cap, cannot leave a clear impression. While applying more pressure to the flat die stamp would ensure that the full name of the country of origin is uniformly--and, therefore, clearly--impressed, it would also deform the cap at the point of contact such that the metal cap could not easily pivot about the broom handle. Thus, this circumstance presents the need for and appropriateness of the secondary marking of the whisk brooms; to cure the initial marking method so that the country of origin is fully conspicuous to ultimate consumers.

Regarding the idea of continuing to die stamp the metal caps but in contrasting colors, as the same impression problem will be present, we do not think that this method will render the country of origin marking conspicuous for marking purposes. Accordingly, we do not encourage the adoption of this idea for the marking problem presented.

Regarding the secondary marking of the metal caps by means of affixing paper sticker labels

For the reasons noted above, the primary, cold stamping of the country of origin onto the metal caps of the whisk broom, while appropriate, is insufficient to meet the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41. But section 134.44, Customs Regulations (19 CFR 134.44), provides that other methods of marking are acceptable except for certain articles classifiable under an item specified in section 134.43. As the whisk brooms are not of a class or kind specified under section 134.43, they may be further marked by any method of marking at any location which insures that the country of origin will conspicuously appear on the article. Thus, the present primary method of die stamping the metal caps, although not conspicuous for country of origin marking purposes, can be cured if a secondary method of marking is employed.

To this end, section 134.44(b) provides for marking articles with paper sticker labels and states that:

[i]f paper sticker or pressure sensitive labels are used, they must be affixed in a conspicuous place and so securely that unless deliberately removed they will remain on the article while it is in storage or on display and until it is delivered to the ultimate purchaser.

If you affix paper sticker labels to the whisk brooms in the manner prescribed by the above regulation, this condition of the imported whisk brooms would operate to cure the currently inadequate method of die stamping the country of origin marking on the metal caps. However, as your letter to the Boston Port states that future shipments will have the country of origin printed on the UPC labels that are around the neck of the whisk brooms, at this time, we cannot rule in the abstract as to whether this future circumstance will operate to cure the country of origin marking problem presented by the die stamping method of marking. Accordingly, we suggest that you contact the Customs Officials of the port where the next shipment of imported whisk brooms will arrive and show them how you intend to secondarily mark the merchandise for country of origin purposes.

HOLDING:

Based on the information presented and after viewing the sample submitted, the primary method of marking the metal caps on the broom handles by die stamping is not fully conspicuous for country of origin marking purposes. The secondary marking of the whisk brooms with paper sticker labels may operate to cure the illegibly of the primary marking method of this merchandise by rendering the full name of the country of origin conspicuous, as required by 19 U.S.C. 1304 and 19 CFR 134.41. However, at this time, we cannot give you the ruling you request without a sample of the paper sticker label you intend to use, nor without information regarding the location on the whisk broom where you intend to display the secondary marking label.

Sincerely,


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