HQ 560565 - Application for Further Review (AFR) of Protest Number 3701-97-100032 concerning the country of origin marking for cut away seats in a bubble wrap; containers; sealed plastic bags; 19 CFR 134.32(d) - United States International Trade Commision Rulings

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HQ 560565

August 13, 1997

MAR-2:05 RR:TC:SM 560565 RSD

CATEGORY: MARKING

Area Port Director
U.S. Customs Service
P.O. Box 37260
Milwaukee, Wisconsin 53237

RE: Application for Further Review (AFR) of Protest Number 3701-97-100032 concerning the country of origin marking for cut away seats in a bubble wrap; containers; sealed plastic bags; 19 CFR 134.32(d)

Dear Mr. Director:

This is in response to your memorandum dated July 8, 1997, forwarding the AFR of Protest Number 3701-97-100032 timely filed by M.E. Dey & Co. on behalf of the importer, Smith & Nephew Rolyan, Inc., regarding the country of origin marking for a cut away seat. A sample of the product accompanied the AFR file.

FACTS:

The subject merchandise are cut away seats made in the United Kingdom. We understand that the seats are typically sold to nursing homes and hospitals. The sample is enclosed in a bubble wrap. A paper sticker label is placed on the top of the bubble wrap which reads "UK ORIGIN" in bold black letters. The part number is printed below the origin marking on the paper sticker label. The sample seat is not marked. The Customs inspector and import specialist who handled the importation have informed us that the importer sells the seats to its customers in bubble wrap without a box. The seats subject to this protest were enclosed in bubble wrap, which was merely taped closed. Your office has informed us that in subsequent shipments of the seats the plastic bubble wrap was sealed, and as a result, it was determined that the country of origin marking was acceptable for these shipments.

ISSUE:

Is the marking appearing on a paper sticker attached to the plastic bubble wrap, which is closed by tape, sufficient to indicate the country of origin of the cut away seat? 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 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin and marking requirements and exceptions of 19 U.S.C. 1304. Section 134.32(d) provides that if the marking of the containers will reasonably indicate the origin of the enclosed imported articles, then the articles themselves need not be individually marked. This exception is applicable in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that in all reasonably foreseeable circumstances the ultimate purchasers will receive the article in its original, unopened and properly marked container.

In C.S.D. 90-17, sunglasses that were not marked to indicate their country of origin were imported for sale to retail consumers in clear unsealed plastic bags which were marked with the article's country of origin. Although Customs noted that the country of origin marking on the plastic bags was legible, permanent, and conspicuous within the meaning of 19 U.S.C. 1304, it found that the marking exception at 134.32(d) was inapplicable to the sunglasses, as the plastic bags were not sealed. Since Customs was not assured that in all foreseeable circumstances the sunglasses would reach the ultimate purchasers in their original unopened marked containers, they had to be individually marked with their country of origin, as required by 19 U.S.C. 1304.

HRL 734314 dated January 27, 1992, concerned checkbook wallets and eyeglass/coin purses, which were individually packaged in unsealed poly bags, imported into the U.S. for retail sales by mail order. We pointed out that because the poly bag containers were unsealed and of a disposable type, i.e., flimsy and plain, we were not convinced that they would always remain with the articles until the articles reached the ultimate purchaser. Although the country of origin marking on the poly bags was conspicuous for purposes of 19 U.S.C. 1304, we concluded that the articles themselves must be conspicuously marked with their country of origin, as no assurances were present that in all foreseeable circumstances the articles would reach the ultimate purchasers in their original unopened marked containers.

In this instance, we agree with your assessment that the plastic bubble wrap, which is merely taped closed, is not permanently sealed and does not constitute a sealed container. If your office does not have assurances that in all reasonably foreseeable circumstances the seats will reach the ultimate purchaser in the properly-marked plastic bubble wrap, we concur that the container exception from country of origin marking under 19 CFR 134.32(d) should not be permitted in this case. Accordingly, we conclude that the cut away seats subject to this protest were not properly marked with their country of origin.

HOLDING:

The protest is denied. Because the plastic bubble wrap enclosing the seats at issue is not sealed, we concur with your assessment that the cut away seats would not in all foreseeable circumstances reach the ultimate purchasers in the plastic bubble wrap, and therefore the merchandise is not excepted from country of origin marking under 19 CFR 134.32(d) by marking the bubble wrap with a paper sticker. Therefore, the cut away seats are not legally marked.

In accordance with section 3A(11)(b), Customs Directive 099 3550-065, dated August 4, 1993, this decision should be mailed by your office to the protestant no later than sixty days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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