HQ 559977 - Country of origin marking of lapel pins; ultimate purchaser; HRL 734202; HRL 734482; 19 U.S.C. 1304(a)(3)(D); 19 CFR HRL 734541; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 559977

December 18, 1996

MAR-2-05 RR:TC:SM 559977 DEC

CATEGORY: MARKING

Mr. Larry Sanchez
Sanchez Enterprises, Incorporated
1895 Phoenix Boulevard, Suite 1332
Atlanta, Georgia 30349

RE: Country of origin marking of lapel pins; ultimate purchaser; HRL 734202; HRL 734482; 19 U.S.C. 1304(a)(3)(D); 19 CFR HRL 734541; 19 CFR 134.46

Dear Mr. Sanchez:

This is in response to your letter dated July 2, 1996, requesting a ruling on the country of origin marking requirements of imported lapel pins.

FACTS:

Sanchez Enterprises, Incorporated, intends to import metal lapel pins from China and/or Taiwan. The lapel pins will be purchased from Tech Arts Industrial Company and will be entered through the port of Atlanta. The lapel pins are custom made and hand crafted in either soft or hard enamel. The pins are approximately 3/4" to 1 «" in size and made of gold or silver plated material. The pins depict custom logos of major corporations, special events, or mascots. The pins have up to 8 pantone colors. Some pins will be used as recognition awards and give-aways by major corporations while others are licensed with major universities and sold in the marketplace.

You specifically question what is the proper marking of the lapel pins when a major corporation purchases the pins to give away to their employees in recognition of completing a training course. The pins are to be stamped with the company name. The pins will be individually wrapped in clear bags and then packaged in larger bags containing 25 pins. On the outside of the bag in which each individual pin is packaged, a sticker with the words "Made in Taiwan" is affixed.

In addition, you inquire as to the applicable country of origin marking requirements of licensed pins that will be sold in the retail marketplace. Specifically, you ask whether it is proper to indicate the country of origin and the local marketing city on the back of the pin.

You submitted two representative samples of the pins and the bags in which they are packaged. Each package has the words "Made in Taiwan" prominently printed. The back of the lapel pins contain the words "Sanchez Enterprises" and "Atlanta/Taiwan."

ISSUES:

What are the country of origin marking requirements applicable to the lapel pins described above?

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 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 Headquarters Ruling Letter (HRL) 734202, dated November 12, 1991 (ultimate purchaser of pens given away by companies to their clients or customers as promotional items are the recipients); HRL 734482, dated February 12, 1992 (ultimate purchaser of pins that are given away at the time of membership renewal is the recipient).

Regardless of whether a company purchases the lapels pins to give to its employees after the completion of a course or an individual purchases the pins in the retail marketplace, the ultimate purchaser of the imported lapel pins will be the recipient of the pin. Therefore, 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, your company does not distribute the pins directly to the ultimate purchaser, but rather through distributors and/or companies. Therefore, you cannot conclusively state that the pins will in all cases remain in their individual bags until receipt by the ultimate purchaser. However, the fact that each pin is individually packaged in its own plastic 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 plastic bags. Based on all these considerations, we believe that it is very likely that the pins will remain in their original plastic bags until receipt by the ultimate purchaser. Accordingly, we find that the marking of the individual polybags in lieu of the pins themselves is acceptable. HRL 734541, dated October 8, 1992.

The next issue to consider is whether the word "Atlanta" (or some other U.S. marketing city) that appears in small lettering on the back of the lapel pin next to the country of origin - "Taiwan" triggers the requirements of 19 CFR 134.46, Customs Regulations (19 CFR 134.46). Customs has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Therefore, in cases where the name of a location 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, section 134.46, Customs Regulations (19 CFR 134.46), provides that 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. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported good.

Here, although the lapel pins may contain a reference to a locality other than the actual country of origin, the plastic bag in which the samples are contained are conspicuously marked in all capital letters "MADE IN TAIWAN." In the context in which the letters appear on the plastic bag, we find that the conspicuous marking on the plastic bag obviates the likelihood that an ultimate purchaser would be misled or deceived as to the country of origin of the imported article by the reference in small lettering to a U.S. city on the back of the lapel pin. Accordingly, we find that the special marking requirements of 19 CFR 134.46 are not triggered, and that the marking "MADE IN TAIWAN" on the plastic bags satisfies the general requirements of permanency, legibility, and conspicuousness under 19 U.S.C. 1304 and 19 CFR Part 134.

HOLDING:

The proposed country of origin marking on the submitted sample lapel pins, as described above, satisfies the country of origin marking requirements provided the port director at the port of entry is satisfied that the articles will reach the ultimate purchasers in a properly marked plastic bag.

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

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