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HQ 560804





MARCH 24,
1998

MAR-O5 RR:TC:SM 560804 BLS

CATEGORY: MARKING

Richard Abbey, Esq.
Ablondi, Foster, Sobin & Davidow, P.C.
1130 Connecticut Avenue, N.W.
Washington, D.C. 20036

RE: Reconsideration of NY Ruling B89526; country of origin marking; 19 CFR 134.46

Dear Mr. Abbey:

This is in reference to your letter dated December 30, 1997, on behalf of SymbolArts, Inc., requesting reconsideration of NY Ruling Letter B89526 (October 2, 1997), concerning country of origin marking requirements in connection with the importation of certain jewelry (rings) imported from the Philippines. A sample of a ring and the container in which it will be sold at retail is enclosed.

FACTS:

The imported articles of jewelry are rings which are a product of the Philippines. Each ring will have a "butterfly" tag attached which will display the country of origin of the article. Prior to shipment, each ring will be placed in a "zip-lock" type bag made of clear plastic sheeting, which can be opened and closed. You state that the rings are displayed in and sold to customers in the plastic bag, but it is normal practice for customers to remove a ring from the bag in order to examine the item and try it on.

The plastic bag is marked with the name of the company "Ring Masters by SYMBOL ARTS" and its location, "OGDEN, UTAH, USA." Printed below this marking in smaller lettering are the words "Bag made in CHINA." There is no marking on the bag indicating the country of origin of the ring.

In NY Ruling B89526, Customs held that the reference on the bag to a U.S. address was unacceptable and must be removed as the contents of the bag were of foreign origin. There also appears to be some difference in the facts set out in that ruling as compared to the instant case or an ambiguity as to the actual facts as the incoming letter in NY B89526 provides that the vendors of the rings will package the rings in the plastic bags after importation. In the facts set forth in this request for reconsideration, the bags are furnished to the foreign manufacturer who then packages
the rings in these containers prior to shipment to the U.S.

ISSUE:

Whether the special marking requirements of 19 CFR 134.46 are triggered by the reference "OGDEN, UTAH, USA," printed on the plastic bag in which the ring is contained.

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 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 purchased, 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; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. Section 134.46, Customs Regulations (19 CFR 134.46), as recently amended by T.D. 97-72, 62 Fed. Reg. 44211, dated August 20, 1997), provides in part that when the name of a 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, and those words, letters, or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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.

The above recent amendment of 19 CFR 134.46 codified existing Customs practice in requiring the additional marking prescribed by the regulation only when the geographic location misleads or deceives the ultimate purchaser as to the country of origin of the article. If the ultimate purchaser is not misled or deceived by the additional marking, the origin marking need only satisfy the general marking requirements of permanency, legibility and conspicuousness under 19 U.S.C. 1304 and 19 CFR Part 134.

Thus, In the instant case, 19 CFR 134.46 is triggered only if the ultimate purchaser would be deceived or misled by the marking "OGDEN, UTAH, USA," which appears on the plastic bag in which the ring is contained. (The marking "Bag made in CHINA," clearly does not refer to the origin of the ring, and thus cannot trigger 19 CFR 134.46.)

You argue that an ultimate purchaser would not be misled or deceived as to the origin of the rings by the reference on the bag to the U.S. locality, for the reason that the rings are marked with their country of origin with a butterfly tag, which displays the country of origin, and is visible through the plastic bag. In this regard, you emphasize that in issuing its decision, New York did not have the benefit of viewing an actual sample of the ring enclosed within the plastic bag, but only an illustration of the bag.

In numerous rulings, Customs has held that the special requirements of 19 CFR 134.46 did not apply as the U.S. or other geographical location did not tend to deceive or mislead the ultimate purchaser as to the actual country of origin of the article. See, e.g., Headquarters Ruling Letter (HRL) 712013 dated January 16, 1980 (Customs held that a U.S. reference ("Kansas") appearing on various locations on a pair of jeans did not trigger 19 CFR 134.46 because such marking was used as a symbol or decoration and would not reasonably be construed as an indication of origin since the actual country of origin was conspicuously and legibly located on the jeans); and HRL 723604 dated November 3, 1983 (Customs similarly found that "USA" letters on men's bikini-style swimming trunks did not trigger the special marking requirements because such marking was used as a symbol or decoration and would not reasonably be construed as indicating the country of origin of the article.)

In HRL 559370 dated February 26, 1996, Customs held that the marking requirements of 19 CFR 134.46 were not triggered by the U.S. reference "Stamford, CT." on the back label of a bottle of malt beverage where the words "Brewed in Ireland" also appeared on the front label. Customs found that an ultimate purchaser would not be misled or deceived into believing that the origin of the malt beverage was the U.S., but rather would recognize that the U.S. reference "Stamford, CT." was where the importer of the product was located and not a statement of origin. We noted particularly that the words "Brewed in Ireland" appeared on the front label and could be easily seen and read by an ultimate purchaser upon a casual examination of the bottle, and that the words "Imported by Guinness Import Company" proceeded the U.S. reference "Stamford, CT".

In the instant case, the "butterfly " tag attached to the ring is clearly visible through the plastic bag in which it is contained. The wording on the tag "MADE IN PHILLIPPINES" is also easily seen through the clear plastic, as it is printed on a white background. In contrast, the wording on the plastic bag is not as visible, as the
background for the marking is clear plastic. It is also reasonable to assume that an ultimate purchaser would open the plastic bag and remove the ring in order to inspect it, and perhaps try it on. In so doing, that person would reasonably notice the tag indicating the country of origin of the ring.

Under these circumstances, we find that an ultimate purchaser of the ring would not be misled or deceived into believing that the origin of the ring was the U.S., but rather would recognize that the U.S. reference "OGDEN, UTAH, USA", was where the importer of the product was located and not a statement of origin. Accordingly, we find that the wording on the plastic bag does not trigger the additional marking requirements of 19 CFR 134.46. We also find that the country of origin marking "MADE IN PHILLIPPINES" appearing on the "Butterfly" label attached to the rings satisfies the general marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported rings. This result applies whether the packaging of the rings occurs prior or subsequent to importation, as in either case the articles will be sold to the ultimate purchaser in the plastic bags. Note, however, that the notification and certification requirements of 19 CFR 134.26 will apply if the rings are repackaged in the plastic bags in the U.S. before sale to the ultimate purchaser.

HOLDING:

The U.S. reference ""OGDEN, UTAH, USA, " which appears on the clear plastic bags containing rings which are clearly marked and visible through such bags, would not mislead or deceive an ultimate purchaser into believing that the imported product is of U.S. origin. Thus, this U.S. reference does not trigger the special marking requirements of 19 CFR 134.46. The country of origin marking "MADE IN PHILLIPPINES" appearing on the "Butterfly" label attached to the rings satisfies the general marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported rings. The notification and certification requirements of 19 CFR 134.26 will apply if the rings are repackaged in the plastic bags in the U.S. before sale to the ultimate purchaser.

NY Ruling Letter B89526 is hereby revoked.

Sincerely,

John Durant, Director
Commercial Rulings Division


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