HQ 0734285 - Country of origin marking of small imported engine parts imported from various foreign countries; conspicuous; trademark; close proximity; U.S. locality; 19 CFR 134.34; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 734285

April 13, 1992

Mar-2-05 CO:R:C:V 734285 AT

CATEGORY: MARKING

Thomas J. O'Donnell, Esq.
Sonnenberg, Anderson, O'Donnell & Rodriguez 200 West Adams Street
Suite 2625
Chicago, Illinois 60606

RE: Country of origin marking of small imported engine parts imported from various foreign countries; conspicuous; trademark; close proximity; U.S. locality; 19 CFR 134.34; 19 CFR 134.46

Dear Mr. O'Donnell:

This is in response to your letters dated August 7, 1991, January 10 and March 17, 1992, on behalf of AE Clevite, Inc., requesting a ruling on the country of origin marking of small imported engine parts which are to be packaged in the U.S. Samples of the small engine parts and the containers in which the parts are to be repackaged were submitted with your letters.

FACTS:

You state that AE Clevite, Inc., and its affiliated companies manufacture and distribute internal engine parts for automobiles and heavy duty engines. You also state that although the majority of the parts sold by AE Clevite are made in the U.S., AE Clevite now intends to import parts from foreign countries. Those parts which will be imported are to be repackaged in cardboard boxes which are then distributed to retail and auto stores for sale to consumers. The parts will be repackaged in one of two different ways depending on the type of part.

For small engine parts, each individual part is to be repackaged into a small cardboard box. Each cardboard box will be printed in white lettering with the words "Michigan 77" on the top and two side panels of the box ("Michigan 77" is a registered
trademark of AE Clevite). The front panel of each box will be marked with the part's country of origin, part number and size by either printing it on the label or by having an adhesive label attached to the front label. The country of origin is printed in black lettering approximately 9 points (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). On the bottom of each box near the left-hand corner AE Clevite's company address "Collierville, Tennessee 38017-2919 USA" is printed in black lettering approximately 4.5 points. Directly across, on the bottom right-hand corner of the box the words "See Part Number Label for Country of Origin" will also be printed in black lettering. None of the individual engine parts are marked with the country of origin.

In the case of engine bearings, these small cardboard boxes will then be wrapped in a four sided cardboard wrapper, which allows the end panels of the smaller boxes to be clearly seen. Such wrappers may contain four, six, or eight of the smaller boxes. If the part is larger, only one box may be inserted in the outside wrapper. Each outside wrapper will be marked in the same manner. The words "Michigan 77" are printed in white lettering on the top and two side panels of each wrapper. The bottom left-hand corner of the wrapper is marked with AE Clevite Inc., company's address "Collierville, Tennessee 38017-2919 USA" in black lettering approximately 4.5 points. The bottom right- hand corner of the wrapper is marked "See Part Number Label For Country of Origin" also in black lettering. The front panel of each of the smaller boxes which contain the individual part are marked with the country of origin in black lettering approximately 5 points along with the part number and size. This information will either be printed on the front panel or will appear on an adhesive label attached to the front panel. None of the individual engine bearings are marked with their country of origin.

You state that both the outside wrappers and stand-alone boxes can contain different parts and must be printed and available before the country of origin of their contents can be known. Also, you state that it is impossible for the consumer to
purchase the parts without checking the part number label, and therefore the label is crucial to the buying decision as the part number must be carefully checked. Furthermore, you state that the merchandise is always displayed at the point of purchase with the part number panel facing out. Otherwise, neither the store clerks nor the customers could locate the merchandise in any efficient manner. Based on these claims, you assert that marking the stand-alone boxes and outside wrappers "See Part Number Label for Country of Origin" is the most efficient way to mark the country of origin of the individual engine parts since this method of marking will guarantee that the consumer will see it prior to making a purchasing decision.

ISSUES:

Whether it is acceptable to mark the stand-alone boxes and outside wrappers in which the imported engine parts are repackaged with the country of origin in lieu of marking the parts themselves?

Whether the country of origin marking on the stand-alone boxes and outside wrappers containing imported engine parts and marked in the manner described above satisfies the requirements of 19 CFR 134.46 and 19 CFR 134.47?

Whether the country of origin marking on the front panel of the stand-alone boxes and small boxes satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41?

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, C.A.D. 104 (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 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines 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 the 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 engine parts is the consumer who purchases the product at retail.

Are The Engine Parts Excepted From Marking?

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. However, since the engine parts are not imported in the stand-alone boxes or small boxes with outside wrappers, whether the engine parts 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.

Assuming that the district director is satisfied that the imported parts will be repacked in the manner set forth below, and that the other conditions set forth in 19 CFR 134.34 are met, the district director may authorize an exception under 19 CFR 134.32(d), in which case marking of the engine parts themselves would not be required.

Assuming The Engine Parts Are Excepted From Marking Under 19 CFR 134.32(d) And 19 CFR 134.34, Are The Containers Properly Marked?

In determining whether the marking is acceptable, Customs will take into account the presence of words or symbols on an article which may mislead the ultimate purchaser as to the country of origin. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality other than the country of origin appear on the imported article, special marking requirements are triggered.

An issue raised in this case involves the application of two related provisions of the marking regulations, 19 CFR 134.46 and 19 CFR 134.47. The application of the special marking requirements set forth in these provisions is triggered by the presence of the words "Michigan 77" printed on the top and two side panels and the words "Collierville, Tennessee" printed on the bottom left-hand corner of the stand-alone boxes and outside wrappers.

Both provisions serve the same purpose of preventing ultimate purchasers from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that section 134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. By contrast, 134.47 requires less, providing that when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place "or in some other conspicuous location". In other words, the country of origin marking needs only to meet the general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in," "Product of," or words of similar meaning.

As applied here, due to the fact that "Michigan 77" is a trademark of AE Clevite, Inc., the less stringent requirements of 19 CFR 134.47 apply. Accordingly, the actual country of origin of the engine parts must satisfy the general standards of conspicuousness and must be preceded by the words "Made in", "Product of", or words of similar meaning.

However, with respect to the marking "Collierville, Tennessee" the stricter requirements of 19 CFR 134.46 apply. Accordingly, the actual country of the origin of the engine parts must appear "in close proximity" to the U.S. reference and in lettering of at least a comparable size. Therefore, the critical issue present in this case is whether the marking "See Part Number Label For Country of Origin" on the same panel as the words "Collierville, Tennessee, satisfies the country of origin marking requirements of 19 CFR 134.46.

Customs has previously approved country of origin markings which do not designate a specific country of origin in close proximity to the U.S. reference but instead directs the ultimate purchaser to a conspicuous location where the country of origin can be found on the article. For example, in HQ 732374 (July 7,1989), Customs determined that the language "Refer to neck label for country of origin" printed on the outside of a poly bag
containing men's dress shirts immediately beneath a U.S. address, was acceptable if the neck label displaying the name of the country of origin in each shirt was easily visible to the ultimate purchaser. See also HQ 732099 (November 3, 1989), in which Customs approved the country of origin marking "See Bulb For Country of Origin" where the bulbs were individually marked and their containers were unsealed.

Similarly in this case, we find that the proposed method of marking satisfies the requirements of 19 CFR 134.46. The words "See Part Number Label For Country of Origin" appears in close proximity to the U.S. reference and is easy to see. Moreover, the actual country of origin marking is located in a place where the ultimate purchaser would expect to find the marking since other essential information such as the part number and size of the specific engine part also appears on the front panel. An ultimate purchaser would be expected to examine the front panel to find out the part number and size of the particular part prior to purchasing it. The country of origin markings can also be easily seen since the size of the lettering is very large (either 5 or 9 point), is in contrasting color (black) and can be easily read without strain. We further find that the country of origin marking is permanent because the marking will be either printed or an adhesive label will be attached to the front panel.

Based on the above considerations, we also find that the country of origin marking on the front panel of either the stand- alone boxes or small boxes is conspicuous within the meaning of 19 U.S.C. 1304, 19 CFR 134.41 and 19 CFR 134.47.

HOLDING:

Assuming the district director authorizes an exception from marking the engine parts pursuant to 19 CFR 134.32(d) and 19 CFR 134.34, the proposed method of marking described above satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director

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