HQ 0734315 - Country of origin marking of pen and pencil sets packaged in unsealed gift boxes for retail sale. Ultimate Purchaser; 134.1(d); 19 CFR 134.32(d); article(s) excepted; C.S.D. 90-81; 19 CFR 134.22(a); package marking; 733836 - United States International Trade Commision Rulings

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HQ 734315

February 10, 1992

MAR-2-05 CO:R:C:V 734315 GRV

CATEGORY: MARKING

Mr. Charles Johnson
Vice President
W.A. Phelps & Co., Inc.
Custom House Brokers
One World Trade Center - Suite 2109
New York, N.Y. 10048

RE: Country of origin marking of pen and pencil sets packaged in unsealed gift boxes for retail sale. Ultimate Purchaser; 134.1(d); 19 CFR 134.32(d); article(s) excepted; C.S.D. 90-81; 19 CFR 134.22(a); package marking; 733836

Dear Mr. Johnson:

This is in response to your letter of August 15, 1991, on behalf of Consumers Distributing Co., and addressed to the Customs regional Office in New York, requesting a ruling regarding the country of origin marking requirements applicable to box-packaged (unsealed) pen and pencil sets. A sample box in which the pen and pencil set will be imported was submitted for examination. Your letter was forwarded to this office on August 21, 1991, for a direct reply. In a telephone conversation with a member of my staff on January 21, 1992, you added and clarified certain information which was considered in this ruling.

FACTS:

Pen and pencil sets are imported from Taiwan in unsealed gift boxes for retail sale. The box is of the standard type used to market such merchandise; black felt-covered, textile-lined and enclosed in a cardboard sleeve. Although the pens and pencils are not individually marked to indicate their country of origin, the box is marked on one end with an ink-stamp in a contrasting color (white) in print type measuring approximately 9-point type (1/8" letters). Retail sales are achieved by means of floor samples: representative merchandise is displayed in its package for customer inspection; deciding to purchase the article, the customer notes the article's catalog number and orders it from the store's inventory; the customer taking immediate delivery of the merchandise.

Because the first shipment of merchandise was deemed to be not legally marked by the port when entered, your client seeks a ruling letter for future shipments that addresses whether the box marking alone is sufficient to meet the country of origin marking requirements of 19 U.S.C. 1304 or must the pens and pencils be individually marked.

The National Import Specialist is of the opinion that the box-package marking is sufficient to satisfy the marking require- ments, as it is reasonable to assume that the retailer (catalog- order store) will not remove the implements from the box and sell them separately.

ISSUE:

Whether the package marking (the gift box) of the imported article (pen and pencil sets) is sufficient for country of origin marking purposes or must the pens and pencils be individually marked.

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. As provided at section 134.41(b), the country of origin marking is considered conspicuous if the ultimate purchas- er in the U.S. is able to find the marking easily and read it without strain.

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 retail consumer who places the catalog order is the last person in the U.S. who will receive the packaged pen and pencil sets in the form in which it is imported and constitutes the ultimate purchaser of the merchandise.
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 Headquarters Ruling Letter 733836 dated February 11, 1991, we considered whether bulk imported pens and pencils that were repacked in unsealed, gift cardboard containers had to be individually marked or whether marking the cardboard containers was sufficient to indicate the country of origin of the pens and pencils under 134.34(d). As the gift boxes were conspicuously marked with the article's country of origin at one end, we con- ditionally found that the marking of the gift containers was sufficient to meet the marking requirements, provided the district director was satisfied that under all reasonably fore- seeable circumstances the merchandise would reach the ultimate purchaser as repackaged. See C.S.D. 90-81 (retail sales of ready-to-assemble furniture, based on display models, accorded article marking exception under 134.32(d), as marked containers were located in the same sales area as the unmarked display models).

Although the case here does not involve a repackaging operation, it does concern retail sales based on display samples, and we follow the reasoning in the above ruling(s) to find that the marking of the box-containers will reasonably indicate the origin of the enclosed imported pens and pencils. Further, because the box is of the standard type used to market pen and pencil sets, we agree with the National Import Specialist that in all reasonably foreseeable circumstances ultimate purchasers will receive the pen and pencil sets in the imported boxed packages.

Package Marking Requirements

Section 134.22(a) provides, in general, that when an article is excepted from individual marking requirements by application of subpart D--19 CFR 134.32(d), the outermost container in which the article ordinarily reaches the ultimate purchaser must be conspicuously marked to indicate the country of origin of the article. 19 CFR 134.22(a) and 134.24(d)(1). The present marking on the box-packages in large letters in contrasting colors constitutes conspicuous marking for purposes of 19 U.S.C. 1304. HOLDING:

The individual pens and pencils, imported in boxed sets from Taiwan, do not have to be marked with their country of origin, as the marking of the boxes will reasonably indicate the origin of the articles, as provided by 19 CFR 134.32(d). Further, the unsealed box-packages are conspicuously marked for purposes of 19 U.S.C. 1304.

Sincerely,

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