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HQ 734778

February 17, 1993

MAR-2-04 CO:R:C:V 734778 ER

CATEGORY: MARKING

Mr. William Rosenfeld
Vice President
Bullet Line
16201 N.W. 49th Avenue
Hialeah, Florida 33014

RE: Country of Origin Marking; Magnetic Index; Conspicuousness; Gifts; 19 CFR 134.41.

Dear Mr. Rosenfeld:

This is in response to your letter dated August 11, 1992, in which you request a ruling regarding the country of origin marking requirements for certain imported magnetic indexes to be given away by companies as promotional items.

FACTS:

The imported magnetic indexes measure approximately 3.25 x 2.25, and consist of a magnetic cover containing an accordion fold of approximately ten pages. With the exception of the first and last pages which are printed on one side only, the remaining pages are printed on both sides. All but the first page are printed with a table suitable for recording names, addresses and telephone numbers. The first and last pages are glued to the cover. The words "Made in Taiwan R.O.C." are printed at the top of the last page in letters half the size of the other wording appearing in the table at the top of the page. The first page is printed in bold with several lines of fill-in-the-blank identification information designed to be completed by the donee, e.g. name, business address, blood type, etc.

The magnetic indexes are imprinted with a business name on the cover and sold to various businesses so that they can be given away as promotional items. By telephone conversation on February 1, 1993, you stated that marking the cover of the index would interfere with the design; consequently, you have marked the last page with country of origin. A sample magnetic index was submitted with the ruling request.

ISSUE:

Is the marking on the last page of the magnetic index sufficient for purposes of satisfying the marking statute?

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 United States 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 United States 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 CCPA 297 at 302 (1940). Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

19 CFR section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the "ultimate purchaser" as generally the last person in the United States who will receive the article in the form in which it was imported. 19 CFR 134.1(d)(4), Customs Regulations (19 CFR 134.1(d)(4)), specifies that if the imported article is distributed as a gift the recipient is the "ultimate purchaser". In HQ 734202 (November 12, 1991), a decision analogous to the present case, Customs ruled that pens given away by companies to their clients or customers as promotionals were "gifts" within the meaning of the Customs regulations. As the recipients, the clients or customers were the "ultimate purchasers" and hence the pens had to be individually marked to comply with the country of origin marking requirements of section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304). In the instant case, the "ultimate purchasers" of the magnetic indexes are the customers to whom the indexes are given as promotional items by the businesses.

The current placement of the country of origin marking, on the top of the last page in letters half the size of those making up the other words appearing on the page, is not in a conspicuous place. The requirement of conspicuousness is set forth in 19 U.S.C. 1304(a) section 134.41, Customs Regulations (19 CFR 134.41) and provides that marking must be easily located and read without strain. The requirement of conspicuousness does not require the country of origin marking to appear in the most conspicuous location. As such, it is not requisite that the marking appear on the cover. However, we believe that the ultimate purchaser, the recipient of the promotional indexes, would be unlikely to easily find and read the marking in its current location because of the small print size and because the marking is on the last page. It is more probable the ultimate purchaser will open the index to the first page and focus intently on it since it is unique in the index, printed in bold lettering and containing spaces designed to be filled-in with personal information about the donee. A marking on this page could easily be found and read and should appear in bold letters of equal size to the those in the words already printed on the page, e.g. "Name", "Address", "Blood type", etc.

In the event the indexes are repackaged before they are given away, the packaging material must be marked with country of origin in compliance with the marking statute. Under these circumstances, the certification and notice to subsequent purchaser requirements of section 134.26, Customs Regulations (19 CFR 134.26) apply.

HOLDING:

Marking the top of the last page of the magnetic index with country of origin in letters half the size of those in the other words appearing on the page does not satisfy the marking statute. The indexes must be marked on the first page in the manner described above in the ruling. Additionally, 19 CFR 134.26 must be satisfied in the event the articles are repackaged before they are given away as gifts.

Sincerely,

John Durant, Director
Commercial Rulings Division

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