HQ 0734541 - Country of origin marking of imported promotional pins; 19 CFR 134.32(d); individual heat sealed polybags; conspicuous - United States International Trade Commision Rulings

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HQ 734541

October 8, 1992

MAR 2-05 CO:R:C:V 734541 LR

CATEGORY: MARKING

Barry E. Powell, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 707 Wilshire Boulevard
Suite 5320
Los Angeles, California

RE: Country of origin marking of imported promotional pins; 19 CFR 134.32(d); individual heat sealed polybags; conspicuous

Dear Mr. Powell:

This is in response to your letters dated March 12 and June 10, 1992 on behalf of your client, Pacific Enterprises (Pacific), requesting a ruling on the country of origin marking of imported promotional pins.

FACTS:

Pacific is an importer of promotional pins. Pacific sells the pins only to Advertising Specialty Distributors (ASD's) whose clients distribute the pins free of charge for promotional purposes. Based upon a specific order from an ASD, Pacific orders the pins from Taiwan or Malaysia. Pacific receives the pins in large cartons with each order separated in a large polybag. In the large polybags, each pins is individually packaged in its own sealed polybag which is marked with the country of origin. The individual polybags will be of 0.04 mm or 0.06 mm in thickness and will be sealed at both ends by automatic heat sealing equipment.

Pacific follows the ASD's instructions and ships the merchandise directly to the ASD or to the ASD's client. At the time of distribution, the large polybag is opened and the end user receives one or two individually marked polybags which contain one pin each. You state that the pins are never removed from the polybag prior to receipt by the end user but are kept in the individual polybags to protect them from becoming tarnished or smudged. Letters to this effect were submitted by two ASD's and by an ASD client.

Several sample pins were submitted, each one packaged in its own polybag which is marked with the country of origin. Each bag is to be heat sealed at both ends prior to importation. Three of the samples are marked "Made in Malaysia" in large black capital letters in approximately 9 point lettering several times on the bag. (A point is a unit of measurement approximately equal to 0.01384 inches or nearly 1/72 inches and all type sizes are a multiple of this unit). Three of the samples are marked "Made in Taiwan" in small black capital letters in approximately 4 point lettering. On two of these bags, the country of origin marking is repeated several times.

ISSUES:

Whether the marking of the country of origin on the individual polybags instead of the pins themselves is acceptable.

If so, whether the marking of the country of origin on the individual polybags is conspicuous.

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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Articles for which the marking of the containers will reasonably indicate their origin are excepted from individual marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). This exception applies only if the article in question is imported in a properly marked container and Customs is satisfied that the article will reach the ultimate purchaser in this original marked unopened container. As provided in 19 CFR 134.1(d) the ultimate purchaser is generally the last person in the U.S. who will receive the article in the form in which it was imported. That section further provides that if the article is distributed as a gift, the recipient of the gift is the ultimate purchaser. Customs has ruled that the ultimate purchaser of promotional items is the recipient. See HQ 734202 (November 12, 1991) (ultimate purchaser of pens given away by companies to their clients or customers as promotionals is the recipient; HQ 734482 (February 12, 1992) (ultimate purchaser of pins that are given away at the time of membership renewal is the recipient). Similarly, in this case, the ultimate purchaser of the imported promotional pins is the recipient. As such, the marking of the each polybag in lieu of the pins themselves is acceptable under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) only if Customs is satisfied that the recipients will receive the pins in their original individually marked polybags.

Relevant factors regarding whether an article is likely to remain in its original container include the chain of distribution, the type of container, and the nature of the article. In this case, the importer does not distribute the pins directly to the ultimate purchaser, but rather through distributors. Therefore, the importer cannot conclusive state that the pins will in all cases remain in their individual bags until receipt by the ultimate purchaser. However, statements by two ASD's indicating that they do not remove the pins from their individually marked polybags prior to distribution to its clients and one such statement from a client have been submitted. Although these statements alone are not conclusive, the fact that each pin is individually packaged in its own heat sealed bag tends to show that the pins are designed to be distributed in this fashion. Also, the fact that the pins are small and could get lost or tarnished were they to be removed prior to receipt by the ultimate purchaser, is further evidence that they will remain in their marked polybags. Based on all these considerations, we believe that it is extremely likely that the pins will remain in their original heat sealed polybags until receipt by the ultimate purchaser. Accordingly, we find that the marking of the individual polybags in lieu of the pins themselves is acceptable.

The remaining issue is whether the polybags are conspicuously and legibly marked with the country of origin. As provided in 19 CFR 134.41(b), the ultimate purchaser must be able to find the marking easily and read it without strain. There is no question that the samples bags which are marked "Made in Malaysia" satisfy this standard. The marking is quite large, and cannot be missed. The bags which are marked "Made in Taiwan" present a closer question. Although the marking is smaller than that which might normally be considered acceptable on a larger article, because the pins and bags are small and the ultimate purchaser would be required to look closely at the article in order to remove the heat sealed polybag, we consider the marking to be acceptable. We also note that the markings appear in contrasting letters and that in two instances they appear several times on the bag. We caution, however, that the sample bags satisfy the minimum standard of legibility and conspicuousness.

HOLDING:

The proposed country of origin marking on the submitted sample promotional pins, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, provided the district director at the port of entry is satisfied that they will be sold in the manner described.

Sincerely,

John Durant, Director

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