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NY A88163

October 4, 1996

MAR-2 RR:NC:1:113 A88163


Mr. Dan Courson
Import Traders, Inc.
333 Southwestern Blvd., Suite 202
Sugar Land, TX 77478

RE: The Country of Origin Marking of Pencils

Dear Mr. Courson:

This is in response to your letter dated September 25, 1996, requesting a ruling on whether the proposed blind marking "China" is an acceptable country of origin marking for imported pencils. A marked sample was submitted with your letter for review.

The merchandise is standard cased pencils. They are round, painted white, and topped by a ferrule and eraser. The pencils will be imported to be imprinted with an advertisement. The pencils are stamped "China" at a place near the ferrule. The stamping is "blind," that is, it is in a non-contrasting color.

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. 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. 19 CFR 134.1(d)(2) also indicates that if the imported article is distributed as a gift the recipient is the "ultimate purchaser." Consequently, although the pencils may be given away by businesses as promotions or advertisements, under the Customs regulations the recipient of the pencils, not the importer, would be considered the ultimate purchaser. Therefore, the pencils must be marked permanently, legibly and conspicuously, to indicate their country of origin to their recipient.

As provided in section 134.41(b), Customs Regulations (19 CFR 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. There are certain factors that need to be considered in determining if the country of origin marking on an article, such as a pencil, is conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors that should be considered is 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 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.

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. 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 pencils, we find that, while the marking is in a conspicuous location, the size of the markings, about 1/16 an inch, is small and difficult to see. The ultimate purchaser is likely to have to strain to see the markings. We also note that the country of origin markings are not in a contrasting color and do not stand out.

The proposed blind marking of imported pencils , as described above, is not conspicuously, legibly and permanently marked in satisfaction of 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 pencils. The marking would be acceptable if it were in a contrasting color.

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 James Smyth at 212-466-2084.


Roger J. Silvestri

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