HQ 560377 - Country of Origin Marking; pen casings; conspicuous; ultimate purchaser; - United States International Trade Commision Rulings

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HQ 560377

May 12, 1997

MAR-02 RR:TC:SM 560377 MLR

CATEGORY: MARKING

Barbara Y. Wierbicki, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048

RE: Country of Origin Marking; pen casings; conspicuous; ultimate purchaser;
19 CFR 134.34

Dear Ms. Wierbicki:

This is in reference to your letter of March 27, 1997, requesting a ruling on behalf of Best Vast Imports, Inc. ("BVI"), concerning the country of origin marking on certain pen casings. Samples were submitted with your request.

FACTS:

The articles at issue are pen casings and pen clips stated to be of Taiwanese origin. The pen casings are approximately 5 1/4 inches long and are made of stainless steel painted in various colors or finished into a brushed silver color. Each casing is also engraved with a design, such as a fish scale-like pattern. At the top of each casing are two parallel slits, approximately 1/4 inch long, to accommodate the pen clip. The pen clips are approximately 1 5/8 inches long and 1/8 inch wide. The top of the clip contains two brackets to allow for attachment into the pen casing. At the top side of the casing, the country of origin "Taiwan" is die-sunk in letters approximately 1/16 inch tall. The clips may also be adorned with a figure, such as an angel, cross or praying hands. The placement of the figure or symbol takes up approximately the top 5/8 inch of the clip. The remaining inch of the clip is free to allow for personalization.

It is stated that each casing contains an ink refill and is a complete pen except that it lacks a pen clip which is later attached to the top of each casing into the two existing slits before distribution for sale to the ultimate purchaser. It is stated that the pen clips are separately packaged in bulk and may also be imported separately. BVI does not wish to mark each pen casing with its country of origin at the time of entry since the pens are not complete and will not be distributed for sale to the ultimate purchaser except after the pen clip, containing the die-sunk country of origin marking "Taiwan", is attached to the pen casing.

ISSUE:

Whether the imported pen casings and their containers may be excepted from marking pursuant to 19 CFR 134.34.

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. In this case, BVI does not wish to mark the imported pen casings with the country of origin "Taiwan" at the time of entry, but it is stated that the pen casings will not reach the ultimate purchaser until after the pen clips, die-sunk with the country of origin of the finished pen, are attached to the pen casings.

In Headquarters Ruling Letter (HRL) 734381 dated March 2, 1992, Customs considered fountain pens and ink cartridge refills which were imported in bulk into the U.S., where they were subsequently packaged into a blister package labeled with the country of origin of the pens and cartridges. It was held that the pens and cartridges could be excepted from individual marking if the conditions set forth at 19 CFR 134.34 were followed.

An article is excepted from marking under 19 U.S.C. 1304(a)(3)(D) and 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 pen casings will be repackaged in the U.S., whether the pen casings will be excepted from individual marking under 19 CFR 134.32(d) is for the port director to decide. In this regard 19 CFR 134.34, provides that an exception may be authorized in the discretion of the port 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.

Accordingly, we find that if approval is granted by the port director under 19 CFR 134.34, the pen casings may be excepted from individual country of origin marking provided their containers are properly marked at the time of importation and the pen casings will be combined with the pen clips, as the pen clips contain the country of origin marking sufficiently conspicuous and legible to satisfy the requirements of 19 U.S.C. 1304.

HOLDING:

On the basis of the information and samples submitted, we find that the finished pens will be properly marked for purposes of 19 U.S.C. 1304. Therefore, if the conditions set forth at 19 CFR 134.34 are complied with, the port director may except the pen casings from individual country of origin marking pursuant to 19 CFR 134.32(d) provided their containers are properly marked at the time of importation as the pen casings will later be combined with the pen clips which contain the country of origin marking sufficiently conspicuous and legible to satisfy the requirements of 19 U.S.C. 1304.

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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