NY 817391 - COUNTRY OF ORIGIN MARKING OF IMPORTED FLAG POLES - United States International Trade Commision Rulings

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NY 817391

January 11, 1996

MAR-2 RR:NC:TP:221 817391

CATEGORY: MARKING

Mr. Albert T. Popp
SOS International, Inc.
1651 East Sunset Road
Suite A103
Las Vegas NV 89119

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED FLAG POLES

Dear Mr. Popp:

This is in response to your letter dated December 7, 1995, requesting a ruling on whether imported plastic flag poles are required to be individually marked with the country of origin if they are later to be processed in the U.S. by a U.S. manufacturer. A sample was submitted with your letter for review.

The telescoping pole is made in China. After importation a domestically manufactured distress flag, printed with the letters "SOS," will be slipped onto the end of the pole and secured between two protruding clips. The pole with attached flag is then packaged in a reclosable plastic bag. The printing on the marketing card states, "The SOS Flag is proudly Manufactured and Distributed in the USA by SOS International, Inc."

The marking statute, section 304, 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 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. Section 134.41(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. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported flag pole is not substantially transformed as a result of being attached to a U.S. made flag, and therefore the ultimate purchaser of the imported pole is the purchaser of the flag pole kit, and not the person who packages the pole with the flag. The article must be marked in such a way that the ultimate purchaser is aware that the pole is made in China. The flag with pole is marketed in a clear, sealed bag. Marking on the pole is sufficient only if it is clearly visible and conspicuous through the packaging. Otherwise, either the bag or the marketing card which shows through the bag must be marked to indicate that the pole is made in China. The marking on the marketing card which implies that the complete pole with flag is made in the United States is considered to be misleading.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in any case in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears. Therefore, if the marketing card includes your domestic address, then the card must also be marked to indicate that the pole is made in China.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. However, since the poles are not imported in their marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the district director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized in the discretion of the district director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, assuming that the district director is satisfied that the imported flag poles will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the district director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported poles will not be required.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at 212-466-5580.

Sincerely,

Roger J. Silvestri
Director

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