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NY B85052

June 18, 1997

MAR-2 RR:NC:MM:113 B85052


Mr. Irving L. Perlman
Max L. Cowen's Student Stores, Inc.
419 Mandeville Street
Utica, NY 13502


Dear Mr. Perlman:

This is in response to your letter dated May 19, 1997, received in this office on June 5, 1997, requesting a ruling on whether imported pencils are required to be individually marked with the country of origin if they are later to be processed in the U.S. Several samples were submitted with your letter for review, including the unmarked pencils in the condition in which you intend to import them, two samples of pencils with the country of origin marked on them next to the store's name, and a sample of another distributor's legally marked pencils.

The merchandise consists of standard #2 pencils painted in various colors. In your letter, you explained that you import the pencils, and imprint them in the United States with the name of your customer in their selected color. The pencils will not be marked with the country of origin when imported; the imprinted pencils bear the marking "Indonesia" immediately below the ferrule.

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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 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. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported pencils are not substantially transformed as a result of the U.S. processing, and therefore the retail consumer is the ultimate purchaser of the imported pencils. The pencils are required to be marked with the country of origin. The Regulations, however, provide for other exceptions.

Normally, articles of foreign origin imported into the United States must be marked with their country of origin at the time of their importation. However, in certain circumstances Customs has recognized that it is necessary to allow articles to be marked after importation. For example, in HQ 735111 (October 15, 1993),Customs ruled that plastic pens could not be marked prior to importation because of practical problems associated with the plastic molds used to make the pens. The exceptions to marking are listed in 19 CFR 134.32, which states, in pertinent part:

The articles described or meeting the specified conditions set forth below are excepted from marking requirements (see subpart C of this part for marking of the containers):

(a) Articles that are incapable of being marked;

(b) Articles that cannot be marked prior to shipment to the United States without injury;

(c) Articles that cannot be marked prior to shipment to the United States except at an expense economically prohibitive of its importation;

(d) Articles for which the marking of the containers will reasonably indicate the origin of the articles;

(e) Articles which are crude substances;

(f) Articles imported for use by the importer and not intended for sale in their imported or any other form;

(g) Articles to be processed in the United States by the importer or for his account otherwise than for the purpose of concealing the origin of such articles and in such manner that any mark contemplated by this part would necessarily be obliterated, destroyed, or permanently concealed;

(h) Articles for which the ultimate purchaser must necessarily know, or in the case of a good of a NAFTA country, must reasonably know, the country of origin by reason of the circumstances of their importation or by reason of the character of the articles even though they are not marked to indicate their origin;

(i) Articles which were produced more than 20 years prior to their importation into the United States;

(j) Articles entered or withdrawn from warehouse for immediate exportation or for transportation and exportation;

(k) Products of American fisheries which are free of duty;

(l) Products of possessions of the United States;

(m) Products of the United States exported and returned;

(n) Articles exempt from duty under ??10.151 through 10.153, 145.31 or 145.32 of this chapter;

(o) Articles which cannot be marked after importation except at an expense that would be economically prohibitive unless the importer, producer, seller, or shipper failed to mark the articles before importation to avoid meeting the requirements of the law...

In your letter, you state that you prefer to mark the pencils after importation. Country of origin marking in conformity with the laws and regulations is a requirement of importation. As you may see in the list of general exemptions, a desired preference for marking after importation, or a sincere intention to mark after importation, is not the basis of an exemption from this requirement. Pencils are not, in and of themselves, articles which are impossible or even dificult to mark before importation. Therefore, based on the circumstances outlined in your letter, the pencils must be marked "Made in Indonesia," in an manner which is legible, conspicuous and certain to reach the ultimate consumer.

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.


Robert B. Swierupski
Chief, Metals and Machinery Branch

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