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HQ 559922

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March 25, 1997

MAR-2-05 RR:TC:SM 559922 KR

CATEGORY: MARKING

Donrita Y. Cottrell
Bausch & Lomb
Bausch & Lomb Place
Rochester, NY 14604-2701

RE: Country of Origin Marking for Sunglasses; 19 U.S.C. 1304(a)(3)(D); 19 CFR ?134.32(d); 19 CFR ?134.34.

Dear Ms. Cottrell:

This is in response to your letter to our Customs office in New York, dated June 5, 1996, and subsequently forwarded to this office concerning the country of origin marking requirements for sunglasses you intend to import in boxes. Two sample cardboard cartons indicating the proposed method of marking were submitted with your request.

FACTS:

You state that Bausch & Lomb ("B&L") intends to import non-prescription sunglasses from various countries to be sold at retail. The sunglasses are not marked with their country of origin. You intend to import the sunglasses in cardboard cartons which will bear an adhesive label attached to an end flap bearing the country of origin of the sunglasses. The box may also contain a sunglass case, in which case the label on the box will give the origin of the case as well.

Customs previously issued B&L a ruling, HQ 735261 (November 24, 1993), which excepted imported sunglass cases from individual country of origin marking if the port director was satisfied, pursuant to 19 CFR ?134.34, that the cardboard box into which the cases were repacked in the U.S. were properly marked with the country of origin of the cases. In the present case, B&L is requesting an exception from individual marking for both the case and the sunglasses which will be imported in the cardboard carton. (There will be no repackaging in the U.S.) You represent that the cartons, on which the label will identify the origin of both the case and sunglasses, will accompany the sunglass-filled case throughout the chain of resale and distribution. You state that in the past, B&L has used a hang tag to indicate the country of origin of the sunglasses. You state that the practice of using a hang tag has resulted in legal actions against B&L for eye injuries. Therefore, you wish to discontinue using a hang tag and mark the cardboard box instead.

The National Import Specialist responsible for sunglasses reports that, in viewing and purchasing the sunglasses at various locations, the sunglasses were sold without the cardboard boxes. These sunglasses were set out individually without a container. The sunglasses also did not have hang tags attached to them.

The sample carton is marked with the phrase "Sunglass Origin U.S.A." on the end flap. Other information such as the B&L address "Rochester, New York 14692 U.S.A.", the style, color, lot number and bar code also appear on the adhesive label.

ISSUE:

May the imported sunglasses and cases be excepted from marking if they are imported in cardboard boxes which have an adhesive label printed with the country of origin of the sunglasses?

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, C.A.D. 104 (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 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines ultimate purchaser as "generally the last person in the U.S. who will receive the article in the form in which it was imported".

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. In HQ 735261 (November 24, 1993), Customs ruled that B&L could mark the carton containing a sunglass case with its country of origin, instead of directly marking the sunglass case. However, Customs stated that the container may be marked with the country of origin in lieu of the article only "if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser..." Id. In the instant case, B&L wishes to extend this prior ruling to cover the sunglasses as well as the sunglass cases. The same reasoning as used in HQ 735261 will apply to the instant case. However, we have received a report of instances in which B&L sunglasses have been sold without the cardboard container and without any hang tags indicating the country of origin. Customs would allow the country of origin to be printed or molded directly into the frame and cases, or adhesive labels could also be used. Therefore, since Customs is not satisfied that the articles will remain in their container until they reach the ultimate purchaser and, since alternate methods of marking the articles are available, in the absence of specific assurances to the port director that the sunglasses will reach the ultimate purchaser in properly marked containers, the articles themselves must be marked with their country of origin.

In addition, ?134.46, Customs Regulations (19 CFR ?134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. HQ 708994 (April 24, 1978). The purpose of 19 CFR ?134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article.

The special marking requirements set forth in section 134.46 are triggered by "Rochester, New York, U.S.A" printed on the adhesive label. Accordingly, the actual country of origin of the sunglass must appear "in close proximity" to the U.S. reference and in lettering of at least a comparable size. The country of origin marking appearing on the adhesive label is directly above the U.S. address and would satisfy the requirements of 19 CFR receives the sunglasses in a properly marked container is satisfied.

HOLDING:

Accordingly, pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR not excepted from individual country of origin marking unless the port director is satisfied that the ultimate purchaser receives the articles in their original unopened and properly marked cardboard containers.

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 Appeals

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