HQ 0734314 - Location of country of origin markings on checkbook wallets and eyeglass/coin purses individually packaged in unsealed poly bags for mail order retail sale. Ultimate Purchaser; 19 CFR 134.1(d)(3); article marking; 19 CFR 134.41(b); conspic- uousness (visibility); 086861; 19 CFR 134.41(a); permanence; package marking; C.S.D. 90-17; C.S.D. 90-63; - United States International Trade Commision Rulings

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HQ 734314

January 27, 1992

MAR-2-05 CO:R:C:V 734314 GRV

CATEGORY: MARKING

Ms. Lynnette Keffer
Jones & Klink Corporation
A Customhouse Brokerage Firm
P.O. Box 92815
Los Angeles, CA 90009-2815

RE: Location of country of origin markings on checkbook wallets and eyeglass/coin purses individually packaged in unsealed poly bags for mail order retail sale. Ultimate Purchaser; 19 CFR 134.1(d)(3); article marking; 19 CFR 134.41(b); conspic- uousness (visibility); 086861; 19 CFR 134.41(a); permanence; package marking; C.S.D. 90-17; C.S.D. 90-63;

Dear Ms. Keffer:

This is in response to your letter of July 18, 1991, addressed to the Area Director of Customs, New York Seaport, on behalf of Value Showcase, a/k/a Arizona Mail Order Company, Inc., requesting a ruling regarding the country of origin marking requirements applicable to checkbook wallets and eyeglass/coin purses individually packaged in unsealed poly bags. A sample of each product--as bagged at the time it is imported--was submitted for examination. Your letter was forwarded to this office on August 21, 1991, for a direct reply.

FACTS:

Checkbook wallets and eyeglass/coin purses, both made in China of scrap leather patch work and individually packaged in unsealed poly bags, are imported into the U.S. for retail sale by mail order. The articles and poly bags are each marked to indicate the country of origin of the articles, and you indicate that the articles are sold in these poly bags.

The checkbook wallet is of a fold over design, such that the checkbook portion can be accessed separately from the wallet portion. Within the checkbook compartment is a separate check- book cover that is permanently affixed to the compartment. On the inside of this checkbook cover the country of origin is indicated by means of non-contrasting color, i.e., blind, stamp, printed in approximately 8-point type (<1/8" letters). The eyeglass/coin purse is marked by means of a fabric label that is glued to the top portion of the interior in approximately the same size type as the checkbook, but is located on the underside of the label.

The poly bags are transparent and of the disposable type. They are marked by means of sticker labels, which denote the catalog number of the enclosed article, the color, and the country of origin, printed in approximately 8-point type (<1/8" letters), the same size type as the articles are marked. The packaged merchandise is sold direct to the public by catalog offering and mail ordered; none of the merchandise is sold through retail shops.

ISSUE:

Whether the present country of origin markings on the submitted samples (wallets and purses) are 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 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" Consideration

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 consumer who mail orders the merchandise is the ultimate purchaser, because (s)he will be last person in the U.S. to receive the imported merchandise in the form in which it is imported.

The Article Marking Exception

Section 134.32(d) provides that if the marking of the containers will reasonably indicate the origin of the enclosed imported articles, then the articles themselves need not be individually marked. This exception is applicable in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that in all reasonably foreseeable circumstances the ultimate purchasers will receive the article in its original, unopened and properly marked container.

In C.S.D. 90-17, sunglasses that were not marked to indicate their country of origin marking were imported for sale to retail consumers in clear, unsealed plastic bags that were marked with the article's country of origin. Although we noted that the country of origin marking on the plastic bags was legible, permanent and conspicuous within the meaning of 19 U.S.C. 1304, we stated that the article marking exception at 134.32(d) was inapplicable to the glasses, as the plastic bags were not sealed, thus, assuring Customs that in all foreseeable circumstances the articles would reach the ultimate purchasers in their original unopened marked container. Accordingly, we held that the glasses themselves had to be marked with their country of origin, as required by 19 U.S.C. 1304. See also C.S.D. 90-63.

In this case, because the poly bag containers are unsealed and of the disposible type, i.e., flimsy and plain, we are not convinced that they will always remain with the articles until the articles reach the ultimate purchaser. Further, because the articles are delivered to consumers by mail, based on catalog sales, we find that the country of origin marking on the poly bags is more for the benefit of the importer in tracking inven- tory than for the benefit of the ultimate purchasers. Thus, although the country of origin marking on the poly bags is conspicuous for purposes of 19 U.S.C. 1304 and 19 CFR 134.41(b), the articles themselves must be conspicuously marked with their country of origin, as no assurances are present that in all foreseeable circumstances the articles will reach the ultimate purchasers in their original unopened marked containers.

The Conspicuous Marking Requirement

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 have noted 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. The method of marking should ensure that the ultimate purchaser can easily discover the country of origin marking upon a casual inspection of the merchandise. Thus, while the 8-point print size in this case is an adequate print size in which to denote the country of origin, i.e., the marking is legible in that it is easy to read once it is located, the locations of the markings are not conspicuous-- visible--enough, rendering the markings difficult to find in the first instance.

In this case, the wallets are marked with their country of origin by means of a non-contrasting blind stamp, which is placed on the inside of the checkbook cover. To discover this marking, the ultimate purchaser must carefully examine two different surfaces in the checkbook compartment, which may not be the reason the article is purchased in the first place--the wallet compartment being as prevalent as the checkbook compart- ment. Accordingly, we do not find the country of origin marking on the inside of the checkbook cover to be conspicuous, as required by 19 CFR 134.41(b), in that ultimate purchasers cannot easily discover it upon a casual inspection of the article; its location is not easy to find. But we note that we have previ- ously held that adhesive labels affixed to wallets, "secure and permanent enough to remain on the wallet until the ultimate purchaser receives the wallet," satisfy the country of origin marking requirements. See Headquarters Ruling Letters (HRLs) 719871 dated September 1, 1982; 730946 dated January 4, 1988; 731380 dated June 15, 1988; 732836 dated December 28, 1989; and, 732100 dated January 18, 1990 (all dealing with the label marking of wallets).

The eyeglass/coin purses are marked with their country of origin by means of a fabric label that is lightly glued inside the top portion of the purse, which is not sufficiently secure to remain with the article until it reaches the ultimate purchaser. Further, the country of origin designation is denoted on the back side of the label. In Headquarters Ruling Letter (HRL) 086861 dated June 2, 1990, we considered whether a country of origin marking on the back of a label sewn into ballet slippers was conspicuous within the meaning of the marking laws. Citing prior rulings which found that country of origin markings on the backs of labels were not easy to find and, therefore, were not conspicuous, we stated that the ultimate purchaser should not have to fold over the label to read the country of origin marking. Accordingly, we found that the country of origin marking on the back of the sewn-in label was not conspicuous within the meaning of the marking laws and that the marking should be placed on the front of the label. Applying this holding to the country of origin marking on the eyeglass/coin purses requires that the country of origin marking be relocated to the topside of the label.
HOLDING:

The country of origin markings presently employed on the wallets and purses are not sufficient to meet the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b). In the case of the wallets, it is not easy to find; in the case of the purses, it is neither readily visible nor sufficiently permanent.

Sincerely,

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