HQ 734469

September 30, 1992

Mar-2-05 CO:R:C:V 734469 AT

CATEGORY: Marking

Andrew G. Halpern, Esq.

Strasburger & Price, L.L.P.

901 Main Street

Suite 4300

Dallas, Texas 75202

RE: Country of origin marking of sunglasses imported from

various foreign countries; conspicuous; close proximity;

U.S. locality; 19 CFR 134.46; C.S.D. 92-33; HQ 732374;

HQ 732099: refers ultimate purchaser to look for origin

in another location

Dear Mr. Halpern:

This is in response to your letters dated January 16 and August 6, 1992,
on behalf of The Bonneau Company (Bonneau), requesting a ruling on the
country of origin marking of imported sunglasses with hang tags attached
before or after importation into the U.S. Samples of the sunglasses and
the hang tags with the proposed marking which are to be attached were
submitted with your letters.

FACTS:

You state that Bonneau intends to import sunglasses from various
countries to be sold at retail stores in the U.S. You also state that
Bonneau\'s normal course of business is to source its products from
manufacturers overseas and receive direct shipment from the
manufacturers at the port of Dallas-Fort Worth, Texas. You claim that
each of these manufacturers is responsible for marking the earpiece of
each pair of sunglasses with the country of origin. The country of
origin marking is designated on the sunglasses at the time of
manufacture by imprinting the marking into the plastic molding of the
earpiece. Examination of the sample sunglasses indicates that the
country of origin marking is printed on the earpiece in lettering
approximately 4.5 point (a point is a unit of measurement approximately
equal to 0.01384 inches or nearly 1/72 inches and all type sizes are a
multiple of this unit).

You also state that because sunglasses are considered medical devices,
Food and Drug Administration (F.D.A.) labeling regulations require the
disclosure of the manufacturer or distributor and a U.S. place of
business on a label. Therefore, in order to facilitate Bonneau\'s
compliance with the F.D.A. labeling requirements, Bonneau proposes to
have hang tags attached to the nose piece of each pair of sunglasses by
the manufacturer or by Bonneau in the U.S. The front of the sample hang
tag is marked with the style of sunglasses followed by the words
\"Eyewear By Bonneau\". The back top portion of the hang tag is marked
with the words \"The Bonneau Company Dallas, Texas 75234, U.S.A.\" in
black ink in lettering approximately 4.5 point. Directly below, the
words \"Made in Country Indicated On Sunglasses\" is printed in black
ink in lettering approximately 5 point. Other consumer information such
as the price, ANSI approval and bar code are also printed on the back of
the hang tag.

You contend that since each pair of sunglasses is properly marked with
the country of origin on the earpiece the proposed marking \"Made in
Country Indicated On Sunglasses\" printed on the back of the hang tag
satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part
134.

ISSUES:

Does the marking on the sunglasses as described above satisify the
country of origin marking requirements set forth in Section 304 of the
Tariff Act of 1930, as amended?

Does the proposed marking on the hand tag marked in the manner described
above satisfy the marking requirements of 19 CFR 134.46?

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

Part 134, Customs Regulations (19 CFR Part 134), implements the country
of origin marking requirements and exceptions of 19 U.S.C. 1304. Section
134.1(d), Customs Regulations (19 CFR 134.1(d)) defines ultimate
purchaser as \"generally the last person in the U.S. who will receive
the article in the form in which it was imported.\" The definition then
gives examples of who might be the ultimate purchaser if the imported
article is used in the manufacture, if the imported article is sold at
retail in its imported form and if an imported article is distributed as
a gift. If an imported article is to be sold at retail in its imported
form, the purchaser at retail is the ultimate purchaser. In this case,
the ultimate purchaser of the sungalsses is the consumer who purchases
the product at retail.

Are The Sunglasses Conspicuously Marked With The Country Of Origin?

Section 134.41, Customs Regulations (19 CFR 134.41), provides that 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 this case, we find that the country of origin marking printed on the
earpiece is conspicuous. The country of origin marking is easy to find
since it is placed on the earpiece; a location where an ultimate
purchaser would expect to find such a mark prior to purchasing the
sunglasses. Furthermore, because the country of origin marking is
printed in approximately 4.5 point lettering, this marking is both easy
to find and read without strain.

Does The Marking On The Hang Tag Marked In The Manner Described Above
Satisfy The Marking Requirements Of 19 CFR 134.46?

The second issue presented in this case is whether the proposed marking
\"Made in Country Indicated On Sunglasses\" printed on the attached hang
tag is an acceptable country of origin marking in view of the fact that
the words \"Dallas, Texas U.S.A.\" appear directly above the country of
origin marking.

In determining whether the marking is acceptable, Customs will take into
account the presence of words or symbols on an article which may mislead
the ultimate purchaser as to the

country of origin. Consequently, if the words \"United States,\"

or \"America,\" the letters \"U.S.A.,\" any variation of such words or
letters, or the name of any city or locality other than the country of
origin appear on the imported article, special marking requirements are
triggered.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in
any case in which the words \"United States,\" or \"American,\" the
letters \"U.S.A.,\" any variation of such words or letters, or the name
of any 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, 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 purpose of this section is
to prevent the possibility of misleading or deceiving the ultimate
purchaser as to the actual origin of the imported goods.

The special marking requirements set forth in section 134.46 are
triggered by the presence of the words \"Dallas, Texas U.S.A.\" printed
directly above the country of origin marking. Accordingly, the actual
country of origin of the sunglasses must appear \"in close proximity\"
to the U.S. reference and in lettering of at least a comparable size.
Therefore, the critical issue presented in this case is whether the
marking \"Made in Country Indicated On Sunglasses\" printed directly
below the words \"Dallas, Texas U.S.A.\" satisfies the country of origin
marking requirements of 19 CFR 134.46.

Customs has previously approved country of origin markings which do not
designate a specific country of origin in close proximity to the U.S.
reference but instead directs the ultimate purchaser to a conspicuous
location where the country of origin can be found on the article. For
example, in C.S.D. 92-33 (September 2, 1992), Customs determined that
the language \"See Part Number Label For Country of Origin\" printed on
stand-alone boxes and outside wrappers containing imported engine parts
immediately beneath a U.S. address, was acceptable if the part number
label displaying the name of the country of origin was easily visible to
the ultimate purchaser. See also, HQ 732374 (July 7,1989), Customs
approved the language \"Refer to neck label for country of origin\"
printed on the outside of a poly bag containing men\'s dress shirts
immediately beneath a U.S. address, provided the neck label displaying
the name of the country of origin in each shirt was easily visible to
the ultimate purchaser; HQ 732099 (November 3, 1989), in which Customs
approved the country of origin marking \"See Bulb For Country of
Origin\" where the bulbs were individually marked and their containers
were unsealed.

Similarly in this case, we find that the proposed method of marking
satisfies the requirements of 19 CFR 134.46. The words \"Made in Country
Indicated on Sunglasses\" appears in close proximity and at least in
comparable size to the U.S. reference \"Dallas, Texas U.S.A.\".
Moreover, the actual country of origin is conspicuously marked on the
earpiece of each pair of sunglasses being that the marking is both easy
to find and read by an ultimate purchaser.

HOLDING:

The proposed method of marking hang tags attached to conspicuously
marked sunglasses by the manufacturer or Bonneau in the U.S., as
described above, satisfies the requirements of 19 U.S.C. 1304 and 19 CFR
Part 134.

Sincerely,

John Durant, Director

Commercial Rulings Division