HQ 0734248 - Location of country of origin marking cast on hack saws. Ultimate Purchaser; 19 CFR 134.1(d); metal article; 19 CFR 134.41 (a) and (b); conspicuousness (visibility); legibility (letter spacing) - United States International Trade Commision Rulings

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HQ 734248

December 4, 1991

MAR-2-05 CO:R:C:V 734248 GRV

CATEGORY: MARKING

Ms. Kim Walton
Import Dept.
Kuehne & Nagel, Inc.
1104 E. Dallas Road, Suite 100
Grapevine, TX 76051

RE: Location of country of origin marking cast on hack saws. Ultimate Purchaser; 19 CFR 134.1(d); metal article; 19 CFR 134.41 (a) and (b); conspicuousness (visibility); legibility (letter spacing)

Dear Ms. Walton:

This is in response to your letter of June 24, 1991, on behalf of Dyna Systems, requesting a ruling regarding the country of origin marking of hack saws. A marked sample was submitted for examination. In a telephone conversation with a member of my staff on November 27, 1991, you added and clarified certain information which was considered in this ruling.

FACTS:

Hack saws, manufactured in Taiwan, will be imported in bulk and individually repackaged for various retail sales. The saw's frame is composed of five separate parts--four of which are cast metal. Four of the parts are permanently attached together; the tightening nut located at the bottom of the handle is removable. On the cast handle portion of the saw, the bordered initials "TCT" are molded in approximately 15-point type (>3/8" letters), located at the top of the left side of the saw. The country of origin is cast in approximately 4-point type (1/16" letters) on the removable tightening nut and appears upside-down. Further, the letters spelling "TAIWAN" are not evenly spaced; are run together, which make them difficult to read. As imported, the saws are individually wrapped in clear plastic. The repackaging operations will be various; some saws will be enclosed in card- board boxes.
ISSUE:

Whether the present country of origin marking on the hack saws is sufficient to meet the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b).

LAW AND ANALYSIS:

The marking statute, 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 pur- chaser 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 clear language of 1304 requires 'conspicuous' marking, and to this end 134.41(b) 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. In this regard, we note that the concept of conspicuousness embraces two concerns: (1) visibility, which is concerned with the requirement that the marking must be able to be found easily, and (2) legibility, which is concerned with the requirement that the marking must be able to be read without strain. While the 4-point print size is an adequate print size in this case in which to denote the country of origin, the lack of adequate, i.e., uniform, spacing between the letters affects the legibility of the marking, as the location of the marking and its being presented in an upside-down format affect its visibility.

The primary purpose of the country of origin marking statute is to "mark the goods so that at the time of purchase the ulti- mate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influ- ence his will." United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). The "ultimate purchaser" is defined generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d). Example (3) of this section provides that if an article is to be sold at retail in its imported form, the purchaser at retail is the "ultimate purchaser." In this case, the retail consumer is the ultimate purchaser, because (s)he will be last person in the U.S. to receive the imported hack saws in the form in which they are imported.
As the hack saws are made of metal, it is appropriate that the country of origin marking is indicated by means of being molded into them. See, 19 CFR 134.41(a) (where it is suggested that the country of origin on metal articles be die sunk, molded in or etched). However, the current marking cast on the only removable part of the hack saw--the tightening nut, which can be twisted to allow the upside-down marking to be presented on one or the other side of the saw, presents issues respecting both visibility and legibility, as the marking is difficult both to find and read. We note also that the current country of origin marking is virtually impossible to see through the plastic wrap- ping. Accordingly, the cast country or origin marking should be relocated to a more visible location, e.g., the handle portion of the saw--a permanent part of the saw, and the letters denoting the country of origin should be evenly spaced to make them more legible.

If the hack saws will be repackaged in the U.S., then the certification requirements of 19 CFR 134.26 are applicable.

HOLDING:

The country of origin marking presently employed--upside- down on the removable tightening nut, does not meet the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b), in that the marking is not readily visible (easy to find) nor legible (easy to read).

Sincerely,

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