HQ 559788 - Request for reconsideration of NY A81142 concerning the country of origin marking requirements for optical cleaning cloths imported from Korea; ultimate purchaser; marking retail container in lieu of article; 19 CFR 134.1(d); 19 CFR 134.32(d); NY A81142 revoked - United States International Trade Commision Rulings

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HQ 559788

May 13, 1996

MAR-2 RR:TC:SM 559788 AT

CATEGORY: MARKING

Peter S. Herrick, Esq.
3520 Crystal View Court
Miami, Florida 33133

RE: Request for reconsideration of NY A81142 concerning the country of origin marking requirements for optical cleaning cloths imported from Korea; ultimate purchaser; marking retail container in lieu of article; 19 CFR 134.1(d); 19 CFR 134.32(d); NY A81142 revoked

Dear Mr. Herrick:

This is in response to your letter dated April 11, 1996, on behalf Crystal Trading Co., Ltd. ("Crystal") requesting reconsideration of NY A81142 dated April 3, 1996. A sample cleaning cloth was submitted for our review.

FACTS:

NY A81142 concerned eyeglass cleaning cloths of Korean origin imported into the U.S. in disposable boxes marked with the country "Korea" (100 cloths to a box) which are then distributed to optical doctors and laboratories in the U.S., who in turn give these cloths to their customers free of charge. Our New York office ruled that the cloths are required to be individually marked with their country of origin and that marking only the boxes was not an acceptable country of origin marking for the imported cloths under 19 U.S.C. 1304. In ruling that the imported cloths are required to be individually marked, our New York office determined that the ultimate purchasers of the imported cloths are the customers who receive the cleaning cloths from doctors and laboratories pursuant to 19 CFR 134.1(d). You have requested Headquarters'reconsideration of NY A81142.ISSUE:

Do the cleaning cloths have to be individually marked with their country of origin if the boxes in which the cloths are packaged and distributed to doctors and laboratories in the U.S. are marked with the country of origin "Korea"?

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 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 C.C.P.A. 297 at 302 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.31(b), Customs Regulations (19 CFR 134.41(b)), mandates 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), 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.

Generally, if an imported article is distributed as a gift, the recipient is the ultimate purchaser, unless the good is a good of a NAFTA country (See, 19 CFR 134.1(d)(4)). However, Customs has ruled that in certain circumstances, such as when the imported article is given to the recipient as part of a service, the recipient of the article is not the ultimate purchaser. Rather, the ultimate purchaser of the imported article is the one who distributes the article. In HQ 559542 (April 24, 1996) Customs ruled that a pesticide servicing company which imported acrolein (a pesticide substance) of German origin into the U.S. was the ultimate purchaser of the imported acrolein, although the pesticide company subsequently, as part of a service contract, either applied the acrolein for its customers (oil field operators) or the customers (irrigation districts and others) applied the pesticide themselves. Customs stated that the pesticide company is providing more of a service than just a product, and thus is considered to be the ultimate purchaser of the imported acrolein and the containers used at the customer's site did not have to be individually marked with the country of origin of the acrolein. In HQ 734232 (November 20, 1991), Customs considered a pharmaceutical drug from Italy, which was packaged in ampules for intravenous use and only dispensed by doctors and nurses. The ultimate purchaser was determined to be the hospital pharmacy and, therefore, it was appropriate if only the 5-pack packages of ampules in which the pharmacy received the drug was marked with the country of origin. In HQ 734524 (July 30, 1992), Customs found an airline to be the ultimate purchaser of frozen meals served to passengers.

Similarly, we find that the ultimate purchaser of the cleaning cloths is the optical doctors or laboratories who give the cloths to their customers free of charge and not the customers. Like the pesticide service company in HQ 559542, it is our opinion that the doctors and laboratories who give the cloths to their customers are providing more of a service than just a product. In our opinion, a customer's principle reason for going to the doctor or optical laboratory is to receive some kind of eye service (whether it is an eye examination, obtaining a prescription for eye glasses or contacts, or buying a pair of eyeglasses), which may include receiving an article free of charge as part of the service, such as cleaning cloths. Thus, we find that the ultimate purchaser of the imported cleaning cloths are the optical doctors or laboratories who give the cleaning cloths to their customers free of charge and not the customers who receive the cloth as ruled in NY A81142.

19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d) provides that if the marking of the containers will reasonably indicate to the ultimate purchaser 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 purchaser will receive the article in its original, unopened and properly marked container. See, HQ 732437 (October 4, 1989) (dental impression trays); HQ 733325 (August 8, 1990) (intravenous drip sets); HQ 733678 (August 30, 1990) (surgical towels).

Thus, provided the cleaning cloths are imported in properly marked containers and the Customs officials at the port of entry are satisfied that in all reasonably foreseeable circumstances the optical doctors or laboratories will receive the cleaning cloths in their original, unopened and properly marked container, the imported cloths are excepted from being individually marked with their country of origin. Properly marking the containers with the country of origin--Korea--in lieu of marking the cleaning cloths themselves is an acceptable country of origin marking for the imported cloths under 19 U.S.C. 1304 and 19 CFR Part 134. Accordingly, New York ruling NY A81142 is hereby revoked.

We note that while we have determined that the optical cleaning cloths are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32, other marking requirements may still exist under the Textile Fiber Products Identification Act. We suggest that you contact the Federal Trade Commission, Washington D.C. 20580, concerning these other marking requirements.

HOLDING:

The ultimate purchaser of the imported cleaning cloths are the optical doctors or laboratories who give the cleaning cloths to their customers free of charge and not the customers who receive the cloths as ruled in NY A81142. Thus, provided the cleaning cloths are imported in properly marked containers and the Customs officials at the port of entry are satisfied that in all reasonably foreseeable circumstances the optical doctors or laboratories will receive the cleaning cloths in their original, unopened and properly marked container, the imported cloths are excepted from being individually marked with their country of origin. Properly marking the containers with the country of origin--Korea--in lieu of marking the cleaning cloths themselves is an acceptable country of origin marking for the imported cloths under 19 U.S.C. 1304 and 19 CFR Part 134. New York ruling NY A81142 is hereby revoked.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction

Sincerely,

John Durant, Director
Tariff Classification

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