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NY B80443




January 16, 1997

MAR-2 RR:NC:MM:109 B80443

CATEGORY: MARKING

Mr. William F. Sullivan
MSAS Customs Logistics, Inc.
248-06 Rockaway Blvd.
Jamaica, NY 11422

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED PORTABLE TEST TELEPHONES FROM CHINA

Dear Mr. Sullivan:

This is in response to your letter dated December 16, 1996, on behalf of Harris Corp., Dracon Division of 809 Calle Plano, Camarillo, CA 93012. You have requested a ruling on whether the proposed method of marking the container in which the portable test telephone is imported with the country of origin in lieu of marking the article itself is an acceptable country of origin marking for the imported portable test telephone. A marked sample container and telephone was submitted with your letter for review.

The container is a standard cardboard box of a suitable size to hold the portable test telephone. The phone itself is not marked. The phone is of the type that is used by telephone company line repair men. All functions are incorporated into a specially designed handset. It has a hook for attaching to the repair man's belt, a dial pad, pulse/tone switch, monitor and talk switch, and two electrical cords with connectors. The box is printed to clearly identify the product and the importer. On the side of the box is a label printed with the name and U.S. location of the importer. Under the U.S. location is the marking "MADE IN CHINA." The country of origin marking is only about half the size of the lettering used in identifying the U.S. location of the importer. In your FAXES of January 13, and January 14, 1997, you provided the following clarifications on the proposed marking. The proposed marking will be permanently printed on the side of the box. The telephones are sold in the imported cartons. The cartons, which have a tab closure, will be securely sealed with tape. The telephones are sold directly to the trade (various telephone companies). They are never sold or offered for sale to over-the-counter retail consumers.

The sample of the proposed marking of the container as described above leads to a second marking issue concerning the marking of the U.S. locality of the importer. These issues will be considered separately.

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. In this case, the ultimate purchaser of the portable test telephone is the various telephone companies.

With regard to the first marking issue, 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. Accordingly, if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the portable test telephone by viewing the container in which it is packaged, the individual portable test telephone would be excepted from marking under this provision.

Portable test telephone which are imported in containers that are marked in the manner described above, are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the portable test telephone are imported and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for the imported portable test telephone provided the port director is satisfied that the article will remain in the marked container until it reaches the ultimate purchaser.

With regard to the second marking issue, 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.

The proposed marking of the imported portable test telephone, as described above, in this instance, does not satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported portable test telephone because the marking of the country of origin is not a comparable size to the U.S. locality marking.

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 Eileen S. Kaplan at 212-466-5673.

Sincerely,

Robert B. Swierupski
Chief, Metals & Machinery Branch

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