HQ 560013 - Country of Origin Marking; nylon handles; conspicuous; ultimate purchaser - United States International Trade Commision Rulings

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HQ 560013

December 3,1996

MAR-02 RR:TC:SM 560013 MLR

CATEGORY: MARKING

Daniel J. Gluck, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048

RE: Country of Origin Marking; nylon handles; conspicuous; ultimate purchaser

Dear Mr. Gluck:

This is in reference to your letter of August 6, 1996, requesting a ruling on behalf of HEWI, Inc. ("HEWI"), concerning the country of origin marking on certain nylon handles. Samples were submitted with your request.

FACTS:

The article at issue is a cabinet handle made of injection molded nylon. The product has a highly polished and non-porous surface. It is stated that HEWI imports injection molded nylon handles and knobs, primarily for sale to hardware distributors and industry related manufacturers, who incorporate the handles into furniture and fixtures produced in North America for eventual retail sale. A small percentage of handles are sold by HEWI to a few firms for retail sale as imported. HEWI sells these handles in individual bags with the country of origin marked on the bag (a sample is submitted).

The handles in question have traditionally been imported in bulk with the country of origin marked on the outer carton in which the handles were shipped. Because there is a possibility that some handles imported in bulk could be sold by the hardware distributors, HEWI has developed a way to mark each individual handle. One sample of red color was submitted, measuring 4 3/16 inches in overall length, with a 1 3/8 inch return on either end. The sample of the red handle is marked on the round surface of the handle which eventually will be flush to the furniture surface after the handle is installed. The word "GERMANY" is in raised letters, approximately 1/8 inch high (approximately 8 point print), printed in a circular fashion.

ISSUES:

I. Whether it is sufficient to only mark the outer container in which the handles are imported.

II. Whether the country of origin marking on the round surface of the handle in raised letters, approximately 1/8 inch high, printed in a circular fashion, is sufficiently legible and conspicuous to satisfy the requirements of 19 U.S.C. 1304.

LAW AND ANALYSIS:

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 imported in 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. 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. Inc., 27 CCPA 297, 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. The marking must survive normal distribution and store handling, and the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. 19 CFR 134.41(b).

I. Ultimate Purchaser

The ultimate purchaser is defined 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). You state that the marking requirements are satisfied by indicating the country of origin on the outer container of the handles for the handles sold to hardware distributors and industry related manufacturers who incorporate the handles into furniture and fixtures produced in the U.S. for retail sale. In Headquarters Ruling Letter (HRL) 735183 dated December 17, 1993, Customs considered drawer slides used in the manufacture of finished furniture and found the ultimate purchaser of the drawer slides to be the person who manufactured the furniture, so that the slides did not need to be individually marked. Similarly, in this case, we find that handles incorporated into furniture and fixtures will be substantially transformed and do not require individual marking, and it will be sufficient to mark the outer container in which the hardware distributors and industry related manufacturers receive the handles. As you also indicate, the handles may additionally be placed in individual bags which contain the country of origin marking.

You have indicated that you cannot assure that in all instances the handles will not be sold or distributed individually. Therefore, to ensure that the handles will be marked to inform the ultimate purchaser of the handles' country of origin when they are not properly individually marked or placed in individual bags, the procedures of 19 CFR 134.26 shall be followed. This section provides in pertinent part that:

If an imported article subject to these requirements is intended to be repacked in retail containers ... after its release from Customs custody, or if the port director having custody of the article, has reason to believe such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part; or (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements. The importer, or his authorized agent, shall sign the following statement.

Accordingly, this procedure shall be used since it is indicated that HEWI cannot assure that the distributor will not only use the handles for incorporation into furniture or fixtures, but may sell the handles individually. The requirements of the marking statute and 19 CFR 134.26 will be satisfied if the outside container in which the handles are imported is properly marked with the handles' country of origin, and if HEWI notifies the U.S. distributor that any handles intended for sale at the retail level need to be marked.

II. Conspicuous and Legible

It is also proposed that the handles will be marked on the round end portion of the handle, in raised lettering approximately in 8 point type. In HRL 733940 dated October 24, 1991, Customs considered certain factors in determining if the country of origin marking on an article, such as a pen, was conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors considered was the size of the marking, the location of the marking, whether the marking stood out, and the legibility of the marking. The size of the marking had to be large enough so that the ultimate purchaser could easily see the marking without strain. The location of the marking had to be in a place on the pen where the ultimate purchaser could expect to find the marking or where it could be easily noticed from a casual inspection. Whether the marking stood out was dependent on where it appeared in relation to other print on the article and whether it was in contrasting letters to the background. The legibility of the marking concerned the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor was stated to be conclusive by itself in determining whether a marking was conspicuous. Instead, it was the combination of these factors which determined whether the marking was acceptable.
In HRL 734162 dated November 18, 1991, Customs found that markings on several pens, in type as large as 4 « points and in locations such as on the top portion of the clip or underneath the clip, were not conspicuously or legibly marked to satisfy the requirements of 19 U.S.C. 1304. However, in HRL 733839 dated January 31, 1991, Customs found that a small, molded, and non-contrasting "Made in China" marking on a sound box measuring 2.25 x 1.375 x 0.375 inches could still be read easily and without strain, considering the nature and small size of the article.

In applying these factors to the handles, it is clear that a marking on the handle portion which remains exposed after installation would be undesirable. It, therefore, appears that the only other place to mark the handle is on the round end portion of the handle. The marking is approximately in 8 point type and in raised capital letters. While the marking is not in contrasting lettering, it is our opinion that considering the nature of the article, the ultimate purchaser is likely to see the marking on the handle. Based on the combination of these factors, we find that the country of origin marking on the round end portion of the handles satisfies the requirements of 19 CFR 134.41 and 19 U.S.C. 1304. If the handles are individually marked as described above, there will be no need to follow the repackaging certification procedures of 19 CFR 134.26 unless the handles will be repackaged prior to sale to the ultimate purchaser.

HOLDING:

On the basis of the information and samples submitted, the ultimate purchaser of the handles will be the hardware distributors and industry related manufacturers who incorporate the handles into furniture and fixtures produced in the U.S. Therefore, it is will acceptable to only mark the outer container in which the hardware distributors and industry related manufacturers receive the handles. Additionally, the marking requirements will be satisfied if the round end portion of the handle is marked in 8 point type and in raised capital letters. If the handles are individually marked as described above, the procedures of 19 CFR 134.26 shall be required only if the handles will be repackaged by a subsequent purchaser prior to sale to the ultimate purchaser.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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

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