HQ H007453

February 5, 2008

**CLA-2 OT: RR: CTF: TCM** H007453 ADK

**CATEGORY:** Marking

Stephen J. Leahy, Esq.

The Law Offices of Stephen J. Leahy

175 Derby Street, Suite 9

Hingham, Massachusetts 02043

**RE:** Country of Origin Marking of Pens from China; Reconsideration of
New York Ruling Letter (NY) M83020

Dear Mr. Leahy:

In a letter dated January 19, 2007, to Bureau of Customs and Border
Protection (CBP), you requested reconsideration of NY M83020, dated May
5, 2006, in which the country of origin marking was determined for pens
imported by your client, Bankers Pen (1991) Inc. (Bankers). For the
reasons set forth below, we affirm NY M83020.

On August 29, 2007, CBP held a teleconference meeting during which you
presented further arguments concerning this reconsideration request.

**FACTS:**

The subject merchandise, Style number G1079, is a ballpoint pen. The pen
is marked "China" at the top of the barrel. This word, which measures
1/16 by 1/4 of an inch, is printed in the same color as the electric
blue barrel of the pen. Marking as such is generally described as
"blind" marking, i.e., in raised letters but not in contrasting color.
The pen will be printed with advertising logos or slogans after
importation and then repackaged and sold in the United States. In
addition to the country of origin marking, the submitted sample is
printed with the following language: "The Spector Image \# G1079."
Unlike the country of origin marking, this language is printed in large,
black font.

In NY M83020, CBP determined that the proposed country of origin marking
for Style G1079 did not satisfy the marking requirements of 19 U.S.C.
§1304 and 19 CFR Part 134[^1]. Banker sought reconsideration of CBP's
determination, arguing that the proposed marking is both legible and
conspicuous.

**ISSUE:**

What is the proper country of origin marking for the subject pen?

**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 United States 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 United States, 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. Friedlander &
Co]{.underline}., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR 134) implements the country of
origin marking requirements and exception of 19 U.S.C. §1304. 19 C.F.R.
§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. A country of origin marking is considered to be conspicuous if
the ultimate purchaser in the United States is able to find the marking
easily and read it without strain. [See]{.underline} 19 CFR §134.41(b),
CBP Regulations, and Headquarters Ruling (HQ) 562832, dated October 23,
2003.

In HQ 733940, dated October 24, 1991, CBP interpreted these rules as
they apply to pens. In that ruling, we stated, in pertinent part:

> **Among the factors that should be considered is \[1\] the size of the
> marking, \[2\] the location of the marking, \[3\] whether the marking
> stands out, and \[4\] the legibility of the marking.** The size of the
> marking should be large enough so that the ultimate purchasers 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.** The
> legibility of the marking concerns the clarity of the letters and
> whether the ultimate purchaser could read the letters of the marking
> without strain. No single factor should be considered conclusive by
> itself in determining whether a marking meets the conspicuous
> requirement of 19 CFR 134.41 and 19 U.S.C 1304. Instead, it is the
> combination of these factors which determines whether the marking is
> acceptable.

(Emphasis added).

Applying this guidance in NY M83020, CBP held that the proposed marking
was unacceptable because it was both blind and only 1.7mm in size. In
its request for reconsideration, counsel for Bankers argues that the
word "China" is large enough so that the ultimate purchaser can easily
see it without strain. We note that in HQ 733940, CBP found that
lettering which was 1.7mm was the smallest font acceptable as a country
of origin marking on a pen barrel. Furthermore, counsel alleges that
"the raised letters obviously stand out against the smooth blue plastic
on which they are imprinted" and that "a casual inspection to the top of
the barrel...would enable the ultimate purchaser to locate the
marking...." Finally, counsel alleges that the marking is legible and
that the ultimate purchaser may read it without strain. During the
August 29^th^ teleconference, Counsel also argued that it would be
impossible to place the word "China" closer to the logo given the space
constraints of the pen barrel.

Although the word "China" is printed legibly and in an adequate
location, the proposed marking violates the country of origin marking
standards set forth for pens in HQ 733940. The letters are only slightly
raised above the surface of the barrel and blend in with the identically
colored background. This is known as "blind marking." As a general rule,
"blind" marking is unacceptable for country of origin purposes. When
merchandise is marked as such, the country of origin designation is not
immediately visible and often requires strain to locate.
[See]{.underline} NY L89263, dated January 10, 2006 (holding that the
blind marking of two "rescue kits" did not satisfy 19 U.S.C. §1304); NY
L88035, dated October 20, 2005 (holding that the blind marking of a
reflective sign did not satisfy 19 U.S.C. §1304 because it was small,
difficult to see and not in a contrasting color); and NY K85861, dated
May 28, 2004 (holding that the blind marking of a musical instrument did
not satisfy 19 U.S.C. §1304 because the marking was too small and
inconspicuous).

Furthermore, the word "China" is printed in extremely small, blind font
while the pen's logo, "Spector Image," is printed in large, black
lettering. HQ 733940 holds that "whether the marking stands out is
dependent on where it appears in relationship to other print on the
article...." In relationship to the other print on the article, the
country of origin marking does not "stand out" and cannot be found
easily and without strain.

Considering the totality of the factors, we find that the country of
origin blind marking on the barrel will not be noticed from a casual
inspection. Accordingly, the marking on the barrel is not sufficiently
legible or conspicuous to satisfy the requirements of 19 CFR 134.41 and
19 U.S.C. 1304. [See]{.underline} HQ 735111, October 15, 1993.

In the reconsideration request, counsel has provided CBP with a pen that
was allegedly distributed at an ACE seminar[^2]. Counsel "assume\[s\]
that since this pen was distributed by Customs, the marking was
acceptable." Counsel therefore asks that we rely on this sample in
making our decision. While the article is marked in a similar fashion to
the subject merchandise, Bankers has not provided any information as to
the circumstances surrounding this pen. There is no evidence that it was
supplied by CBP nor is there any indication that the pen was the subject
of a CBP ruling or decision. When reconsidering an administrative
ruling, CBP may only take into account the merchandise subject to the
request. Additional merchandise, even if similar to the protested
entries, may not be considered. As a result, the additional pen has no
bearing on the subject matter.

**HOLDING:**

The proposed marking for the ballpoint pen, Style number G1079, does not
satisfy 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
pens.

**EFFECT ON OTHER RULINGS:**

NY M83020, dated May 5, 2006 is hereby affirmed.

Sincerely,

Myles B. Harmon, Director

Commercial and Trade Facilitation Division

[^1]: In NY M83020, CBP considered the country of origin marking
    requirements for five ballpoint pens. The importer, Banker, has only
    sought reconsideration of the decision on one of those pens, Style
    Number G1079.

[^2]: ACE is CBP's Secure Data Portal designed to enhance national
    border security and expedite lawful trade. It automates and
    consolidates border processing.