HQ 734331

February 10, 1992

MAR-2-05 CO:R:C:V 734331 GRV

CATEGORY: MARKING

Mr. Troy E. Clarke, President

CBT International Inc.

Customs Brokers

936 Mahar Avenue

Wilmington, CA 90744

RE: Location and method of denoting country of origin

marking on packaged (sealed) hand tool sets. Ultimate

purchaser; 19 CFR 134.1(d)(3); metal tools; articles

excepted; 19 CFR 134.32(d); C.S.D. 89-113; C.S.D. 89-

78; container marking; 19 CFR 134.22(a); conspicuous-

ness (visibility and location); 19 CFR 134.41(b);

C.S.D. 91-23; C.S.D. 83-79; C.S.D. 79-379; C.S.D. 88-

25; C.S.D. 90-41

Dear Mr. Clarke:

This is in response to your letter of August 6, 1991,

addressed to the Area Director of Customs in New York, on behalf

of Alltrade Inc., requesting a ruling regarding the country of

origin marking of packaged (sealed) hand tool sets imported from

various countries. Your letter and the sample hand tool packages

were forwarded to this office on September 5, 1991, for a direct

reply.

FACTS:

Variously retail-packaged tool sets are imported from

various countries. One of the sample sets\--a 22-piece wrench

set\--is packaged in a large (measuring approximately 13\" by 23\")

transparent plastic container (disposable) that is further

packaged in a cardboard box shrink-wrapped in clear plastic. The

clear plastic packaging allows the ultimate purchaser to view the

individual tools without opening the package. The other sample

set\--a 40-piece metric tool & socket set\--is packaged in a

smaller (measuring approximately 10\" by 13\") opaque plastic con-

tainer (a reusable carrying case) that is further packaged in a

cardboard sleeve also shrink-wrapped in clear plastic. Although

the ultimate purchaser cannot see the actual tools in this latter

type of packaged set, the tools are represented by a picture on

the cardboard sleeve that is wrapped within the outermost plastic

wrapping. Regarding the size of the two packages, we note that,

as the 40-piece set is twice is large as the 22-piece set, it is

more awkward to handle; each set weighing more than 5 pounds.

The tools in a given set are not individually marked to

indicate their country of origin. And although the cardboard

packagings denote the respective country of origin of the

imported hand tool sets, they are printed in various print sizes

and types and variously located on the packages. In the case of

the larger 22-piece wrench set, the country of origin marking

(\"MADE IN INDIA\") is located on the back of the package in the

lower left-hand corner between references to the importer\'s U.S.

locations and other consumer and foreign carton printing infor-

mation, and printed in comparable capital letters in contrasting

colors in approximately 4-point type (1/16\" letters). In the

case of the smaller 40-piece metric tool & socket set, the

country of origin marking (\"MADE IN TAIWAN\") is located on the

front side panel of the package in the left-hand corner between

references to the importer\'s U.S. locations and other consumer

information, but printed in contrasting color capital letters

that measure only approximately 3-point type (\<1/16\" letters).

You believe the packaged hand tools are properly marked,

based on certain prior rulings (C.S.D. 88-25, Headquarter Ruling

Letter 730567 and ORR Ruling 73-0022) and section 134.32(d) of

the Customs Regulations, which provides for package marking in

lieu of article marking, and request that we advise you as to

whether the enclosed samples are properly marked.

The National Import Specialist is of the opinion that

because the country of origin marking on the smaller 40-piece

tool set is so small (3-point type) it is neither conspicuous nor

legible, especially since it is sandwiched between references to

the distributor\'s U.S. locations and other consumer information,

whereas, the marking on the larger 22-piece wrench set, similarly

sandwiched between the same information, but presented in a 4-

point type, meets the country of origin marking requirements. No

opinion respecting the particular locations of the country of

origin markings was expressed.

No issue respecting the provisions of 19 CFR 134.46 are

presented by this ruling request.

ISSUE:

Whether the country of origin markings on either of the

plastic-wrapped hand tool sets meet the marking requirements of

19 U.S.C. 1304 and 19 CFR 134.41(b).

LAW AND ANALYSIS:

The marking statute, 304 of the 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 pur-

chaser 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.

The primary purpose of the country of origin marking statute

is to \"mark the goods so that at the time of purchase the ulti-

mate purchaser may, by knowing where the goods were produced, be

able to buy or refuse to buy them, if such marking should influ-

ence his will.\" United States v. Friedlaender & Co., 27 CCPA

297, 302, C.A.D. 104 (1940).

The \"Ultimate Purchaser\" Consideration

The \"ultimate purchaser\" is defined generally as 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). Example (3) of this

section provides that if an article is to be sold at retail in

its imported form, the purchaser at retail is the \"ultimate

purchaser.\" In this case, the retail consumer is the ultimate

purchaser, because (s)he will be last person in the U.S. to

receive the imported merchandise (tools) in the form (plastic-

wrapped container package) in which it is imported.

The Article Marking Exception

19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) provide 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. C.S.D. 89-78.

In C.S.D. 89-113, we observed that an article imported in a

blister package for retail sale to the ultimate purchaser would

generally be excepted from individual marking under the provi-

sions of 134.32(d), since blister packaging are obviously

intended to remain with the article through its retail sale to

the ultimate purchaser. Accordingly, given that the containers

are shrink-wrapped in clear plastic in this case, we agree that

it may be acceptable to mark the country of origin of the tools

on the container in lieu of the individual tools themselves,

provided the container marking is conspicuous and reasonably

indicates the origin of the articles. 19 CFR 134.22(a) and

134.24(d)(1).

Conspicuous Marking

The clear language of 1304 requires \'conspicuous\' marking,

and to this end 134.41(b) provides, in part, that the country of

origin marking is considered conspicuous if the ultimate purchas-

er in the U.S. is able to find the marking easily and read it

without strain. In this regard, we have noted that the concept

of conspicuousness embraces two concerns: (1) visibility, which

is concerned with the requirement that the marking must be able

to be found easily, and (2) legibility, which is concerned with

the requirement that the marking must be able to be read without

strain. We have also noted that, in general, information pre-

sented in boldface print and/or a large print size tends to draw

the ultimate purchaser\'s attention away from other information

that is presented in lightface type and/or a smaller print size.

Lastly, we have noted that the country of origin marking should

be presented in format that is conspicuous: made readily

apparent, 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.

C.S.D.s 91-23, 83-79 and 79-379.

Regarding the print size employed to denote the country of

origin marking, we have stated that where various print sizes and

types are employed to convey various information and the country

of origin marking is presented in the lightest-face print and/or

the size of the marking is very small (3-point type), the country

of origin marking is not easy to read and that it does not comply

with the marking requirements of 19 U.S.C. 1304 and 19 CFR

134.41(b). C.S.D.s 91-23, 83-79 and 79-379. And in the rulings

you rely on for the proposition that indicating the country of

origin marking on the backside of cardboard sleeves beneath the

U.S. address of the manufacturing company\--HRL 730567 dated

August 26, 1987 and C.S.D. 88-25, we note that the print size

involved was slightly less than 9-point type, much larger than

the print size on the submitted samples.

Regarding the location of the country of origin marking on

blister packaged tools, although in C.S.D. 88-25 we found that

marking a kit containing twelve computer tools on the backside

of cardboard sleeves beneath the U.S. address of the manufac-

turing company was acceptable, in C.S.D.s 83-78 and 83-79 we

found the country of origin marking on the backside of certain

blister packaged tools\--in small type and unbolded type where

other information was presented in bolded type\--to be incon-

spicuously placed and not acceptable. In general, whether or not

a particular country of origin marking is considered conspicuous

is dependant on a combination of factors: where and how it

appears and whether other information is present. Where the

location of the marking is in issue, the concern is whether the

marking is in a place on the particular merchandise where the

ultimate purchaser could expect to find it or where (s)he could

easily notice it from a casual inspection/handling of the good.

Thus, size and weight of the merchandise may be relevant

considerations in a given case. See C.S.D. 90-41.

In this case, we find that the country of origin marking on

the 40-piece tool set, printed in 3-point print, is neither easy

to find nor read, and that the country of origin marking on the

22-piece tool set\--although printed in 4-point print, which is

legible\--is presented in the smallest type sandwiched between

other information and different, i.e., bolded, type-face, is hard

to read.

HOLDING:

The country of origin markings on the plastic-wrapped hand

tool sets are not conspicuous for different reasons and do not

meet the marking requirements of 19 U.S.C. 1304 and 19 CFR

134.41(b). In the case of the larger 22-piece set, although the

location of the marking on the bottom panel may be acceptable,

the print-size should be enlarged to make it more visible, as the

other information printed on the panel renders the country of

origin marking hard to find in the first instance. In the case

of the smaller 40-piece set, the print-size should be enlarged to

make it both more easy to find and read, as required by 19 U.S.C.

1304 and 19 CFR 134.41(b).

Sincerely,

John Durant, Director

Commercial Rulings Division