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HQ 560318





By Facsimile 011-852-2891-8127
March 25, 1997
MAR-02 RR:TC:SM 560318 MLR

CATEGORY: MARKING

Mr. Alex Leung
Andrea ANC Manufacturing Inc.
Room 208, Seaview Estate
2-8 Watson Road
Hong Kong

RE: Country of Origin Marking; headset; conspicuous; ultimate purchaser

Dear Mr. Leung:

This is in reference to your facsimile of February 20, 1997, requesting a ruling concerning the country of origin marking on certain headsets. A sample was submitted with your request.

FACTS:

The article at issue is a headset. The headset consists of an earpiece, a speaker piece, and a long black wire which splits into two separate plastic input plugs at the end of the wire. One plug is green and the other plug is black, and both are approximately 1 « inch long. The black plug contains the marking "China" in black raised print, measuring approximately 1/4 x 1/16 inch. The headset itself contains the words "Andrea NC-50" just above the earpiece. It is stated that the headsets are packaged in clear plastic bags and will be sold to computer manufacturers or system integrators who include the headsets as part of their systems sold to the general public.

ISSUE:

Whether the country of origin marking on the black plug of the headset is sufficiently legible and conspicuous to satisfy the requirements of 19 U.S.C. 1304.

LAW AND ANALYSIS:

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 imported in 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 produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co. Inc., 27 CCPA 297, 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. The marking must survive normal distribution and store handling, and the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. 19 CFR 134.41(b).

I. Ultimate Purchaser

The ultimate purchaser is defined 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). You state that the headsets will be sold to computer manufacturers or system integrators who include the headsets as part of their systems sold to the general public. In Headquarters Ruling Letter (HRL) 734560 dated July 20, 1992, Customs considered a telephone set consisting of a base unit, a handset, a handset cord, and a cord to connect the telephone to the jack. It was determined that either each component had to be separately marked with its country of origin, or the components could be excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D) as long as the customs officials at the port of entry were satisfied that the ultimate purchaser, i.e., the retail buyer, received the set in a carton which correctly and conspicuously contained the marking of each of the components, such as "Telephone base made in (name of country); Handset made in (name of country); Transformer made in (name of country); Line Cord made in (name of country)", or similar language.

In this case, although you have not provided any information on the systems of your distributors, we find that if the computer manufacturers or system integrators sell the headsets to the general public as part of a set, then the ultimate purchaser of the set will be the person buying the set at retail. Therefore, the person buying the headset at retail will have to be advised of the origin of the headset. Accordingly, the next question to be resolved is whether the marking on the headset on the black plug is conspicuous.

II. Conspicuous and Legible

In HRL 733940 dated October 24, 1991, Customs considered certain factors in determining if the country of origin marking on an article was conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors considered was the size of the marking, the location of the marking, whether the marking stood out, and the legibility of the marking. The size of the marking had to be large enough so that the ultimate purchaser could easily see the marking without strain. The location of the marking had to be in a place on the article where the ultimate purchaser could expect to find the marking or where it could be easily noticed from a casual inspection. Whether the marking stood out was dependent on where it appeared in relation to other print on the article and whether it was in contrasting letters to the background. The legibility of the marking concerned the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain.

In this case, we find that the marking on the black plug is not conspicuous. The print is in black print against a black background and the marking is at the end of the headset's wire and not on the main part of the headset near the words "Andrea NC-50". Because the marking is not at a location where it normally would be found, we find that the size of the print is also too small.

You question whether it will be appropriate to mark the plastic bag in which the headset is sold to the computer manufacturers and system integrators. In HRL 734560, Customs determined that marking the plastic sleeve in which some of the components were shipped, instead of the component itself, would not suffice because the sleeve was removed at the time the components were assembled. In HRL 734541 dated October 8, 1992, Customs considered various factors in discussing whether an article is likely to remain in its original container. These factors included the chain of distribution, the type of container, and the nature of the article. In this case, although you have not indicated whether the headsets will be removed from their plastic packaging by the computer manufacturers and system integrators, we find that it is likely that the headsets will be removed from their plastic packaging. Therefore, rather than marking the plastic packaging, the headsets should be marked with their country of origin on the main portion of the headset, such as near the words "Andrea NC-50" in a contrasting color.

In the alternative, you may distribute the headsets to the computer manufacturers and system integrators in a properly marking container (i.e., a carton) and follow the certification requirements of 19 CFR 134.26. This section provides in pertinent part that:

If an imported article subject to these requirements is intended to be repacked in retail containers ... after its release from Customs custody, or if the port director having custody of the article, has reason to believe such article will be repacked after its release, the importer shall certify to the port director that: (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements.

Additionally, the requirements of 19 CFR 134.26(d) must be satisfied. This section provides that if the article is sold or transferred to a subsequent purchaser or repacker, a notice shall be given to the purchaser or repacker informing him of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
Accordingly, if you do not wish to individually mark the headsets and since you cannot assure Customs that the distributors will not remove the headsets from their plastic packaging, you should file a certification with the port director as indicated in 19 CFR 134.26(a), and provide a notice to the computer manufacturers and system integrators, as indicated in 19 CFR 134.26(d). If the Customs officials at the port of entry are satisfied that the ultimate purchasers (i.e., retail buyer) will receive the headsets in properly marked containers, the headsets may be excepted from individual marking pursuant to 19 CFR 134.32(d).

HOLDING:

On the basis of the information and sample submitted, the ultimate purchaser of the headsets will be the person purchasing the headsets as part of a set. The marking on the plug at the end of the cord on the headset is not conspicuous. Therefore, the headsets should be marked in a contrasting color on the main portion of the headset, or the headsets must be packaged in a properly marked container and the procedures of 19 CFR 134.26 shall be followed. If the Customs officials at the port of entry are satisfied that the ultimate purchasers (i.e., retail buyer) will receive the headsets in properly marked containers, the headsets may be excepted from individual marking pursuant to 19 CFR 134.32(d).

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director

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