NY F89219 - COUNTRY OF ORIGIN MARKING OF PENS FROM JAPAN. - United States International Trade Commision Rulings

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NY F89219

July 25, 2000

MAR-2 RR:NC:SP:221 F89219

CATEGORY: MARKING

Mr. Marc D. Torrence
V. Alexander & Co., Inc.
P.O. Box 291929
Nashville, TN 37229-1929

RE: COUNTRY OF ORIGIN MARKING OF PENS FROM JAPAN.

Dear Mr. Torrence:

This is in response to your letter dated June 23, 2000, on behalf of Sanford LP, requesting a ruling on whether the proposed marking is an acceptable country of origin marking for imported pens. Marked samples were submitted with your letter for review.

The products are identified as PhD ball point pens. The pens are currently produced in Japan. The two main components are the body and the ink refill. The marking “Japan” appears in contrasting color on the barrel of the pen in letters approximately 1 mm high.

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.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

As provided in section 134.41(b), Customs Regulations (19 C.F.R. §134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. In HQ 733940, of October 24, 1991, Customs Headquarters described certain factors that need to be considered in determining if the country of origin marking on an article, such as a pen, is conspicuous within the meaning of 19 C.F.R. §134.41 and 19 U.S.C. §1304. Among the factors that should be considered are the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchaser can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background.

No single factor should be considered conclusive by itself in determining whether a marking meets the conspicuous requirement of 19 C.F.R. §134.41 and 19 U.S.C. §1304. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.

In applying these factors to the instant pen, we find that, while the marking is in a conspicuous location, the size of the marking, about 1 mm in height, is virtually impossible to see. Thus, the sample pens are not conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. §1304 and 19 C.F.R. Part 134, and the proposed marking is not an acceptable country of origin marking for the imported pens. We suggest marking in the same contrasting color but in significantly larger print.

You also request a ruling as to the country of origin marking requirements if the ink refill is produced in Taiwan and then shipped to Japan to be assembled with the Japanese origin pen components to form a finished article. 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. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials.

In determining whether the combining of parts or materials constitutes a substantial transformation, the issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article. Assembly operations which are minimal or simple, as opposed to complex or meaningful, will generally not result in a substantial transformation.

HQ has ruled consistently that combining pen parts to form a pen does not substantially transform the parts. Since the assembly of the refill with the pen body is merely a minor one which leaves the identity of the refill intact, the purchaser of the complete and assembled pen is regarded as the ultimate purchaser of the refill as well. Accordingly, the pens are required to be individually marked to indicate not only Japan as the country of origin of the pen bodies, but Taiwan as the country of origin of the refills.

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. If the pens will be imported on a blister card or in some other sealed packaging container, marking on the container to indicate the country of origin of both the pen and the ink refill will satisfy the marking requirements.

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 Joan Mazzola at 212-637-7034.

Sincerely,

Robert B. Swierupski
Director,

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