HQ 0734368 - Country of Origin Marking Requirements for Musical Flags imported from Spain; 19 U.S.C. 1304(a)(3)(D); 19 CFR 134.32(d). - United States International Trade Commision Rulings

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HQ 734368
April 13, 1992

MAR-2-05 CO:R:C:V 734368 ER

CATEGORY: MARKING

Mr. Alexander G. Arroyos
President
Dynamic Ocean Services International, Inc. New York Region
New York, New York 11048

RE: Country of Origin Marking Requirements for Musical Flags imported from Spain; 19 U.S.C. 1304(a)(3)(D); 19 CFR 134.32(d).

Dear Mr. Arroyos:

This is in response to your letter of May 13, 1991 in which you request a ruling on behalf of your client, Roca Comercio Exterior, S.A. de C.V. of Mexico, concerning the country of origin marking requirements for musical flags imported from Spain. We apologize for the delay in responding.

FACTS:

In your letter you state that the merchandise at issue, described as "musical flags," will be manufactured in Spain and imported in individual retail boxes. The retail box displays a picture of the musical flag. You propose marking the retail boxes in a conspicuous fashion with the words "Made in Spain", and in a sufficiently permanent manner so as to reach the retail purchaser. By telephone conversation on March 3, 1992 you specified that the country of origin marking will appear on each side of the retail box where any other lettering or words are displayed and will be in letters of at least one-half inch in size. Each retail box, containing one musical flag, will display a country of origin marking at the time of importation. These retail boxes will be imported in sets of twenty-four and will be contained in larger cartons which will also be marked with the country of origin. The retail boxes will not be opened prior to purchase by the retail buyer.

The merchandise consists of a 17" flag pole, a 10" x 4.5" textile U.S. flag, a 5" in diameter by 3" high plastic base with a musical mechanism and a battery-powered motor and gear mechanism to raise the flag. The musical mechanism incorporates a small disk, similar to a record album, which, when spun, is accessed via a stylus. The overall height is 20.5". By pressing the button on the plastic base, the flag is raised to the top of the pole while the musical mechanism plays the Star Spangled Banner.

In HQ 089831 (October 4, 1991), Customs ruled that the merchandise is classified under subheading 8479.89.6000, HTSUSA, as machines and mechanical devices, having individual functions, not specified or included elsewhere in this chapter; parts thereof, other machinery and mechanical appliances, other, electromechanical appliances with self-contained electric motor, other.

ISSUE:

Whether the musical flags to be imported from Spain in individual containers marked with the country of origin and sold unopened in this manner to retail buyers are eligible for the exception to individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d)?

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 are 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 (1940).

Part 134, Customs Regulations (19 CFR Pat 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), provides that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. In this case, the retail purchaser buying the musical flag is the ultimate purchaser.

An article is excepted from marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), if the marking of the container of such article will reasonably indicate the origin of such article. Based on the nature of the product and the retail container, we are satisfied that the container will remain with the product until it reaches the ultimate purchaser and that the marking of the container is sufficient. As described above, you propose to import the musical flags in retail containers which are marked with the words "Made in Spain" in letters of at least one-half inch in size and sell the merchandise to the retail buyers in these same, unopened and marked containers. Assuming these containers are legibly, conspicuously and permanently marked "Made in Spain", the musical flags may be excepted from individual country of origin marking.

HOLDING:

Musical flags may be excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), so long as they are each imported in the individual retail containers described above which are legibly, conspicuously and permanently marked "Made in Spain".

Sincerely,

John Durant, Director
Commercial Rulings Division

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