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HQ H007453

February 5, 2008

CLA-2 OT: RR: CTF: TCM H007453 ADK


Stephen J. Leahy, Esq.
The Law Offices of Stephen J. Leahy
175 Derby Street, Suite 9
Hingham, Massachusetts 02043

RE: Country of Origin Marking of Pens from China; Reconsideration of New York Ruling Letter (NY) M83020

Dear Mr. Leahy:

In a letter dated January 19, 2007, to Bureau of Customs and Border Protection (CBP), you requested reconsideration of NY M83020, dated May 5, 2006, in which the country of origin marking was determined for pens imported by your client, Bankers Pen (1991) Inc. (Bankers). For the reasons set forth below, we affirm NY M83020.

On August 29, 2007, CBP held a teleconference meeting during which you presented further arguments concerning this reconsideration request.


The subject merchandise, Style number G1079, is a ballpoint pen. The pen is marked “China” at the top of the barrel. This word, which measures 1/16 by 1/4 of an inch, is printed in the same color as the electric blue barrel of the pen. Marking as such is generally described as “blind” marking, i.e., in raised letters but not in contrasting color. The pen will be printed with advertising logos or slogans after importation and then repackaged and sold in the United States. In addition to the country of origin marking, the submitted sample is printed with the following language: “The Spector Image # G1079.” Unlike the country of origin marking, this language is printed in large, black font.

In NY M83020, CBP determined that the proposed country of origin marking for Style G1079 did not satisfy the marking requirements of 19 U.S.C. §1304 and 19 CFR Part 134

In NY M83020, CBP considered the country of origin marking requirements for five ballpoint pens. The importer, Banker, has only sought reconsideration of the decision on one of those pens, Style Number G1079.. Banker sought reconsideration of CBP’s determination, arguing that the proposed marking is both legible and conspicuous.


What is the proper country of origin marking for the subject pen?


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 United States 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 United States, 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. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR 134) implements the country of origin marking requirements and exception of 19 U.S.C. §1304. 19 C.F.R. §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. A country of origin marking is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain. See 19 CFR §134.41(b), CBP Regulations, and Headquarters Ruling (HQ) 562832, dated October 23, 2003.

In HQ 733940, dated October 24, 1991, CBP interpreted these rules as they apply to pens. In that ruling, we stated, in pertinent part:

Among the factors that should be considered is [1] the size of the marking, [2] the location of the marking, [3] whether the marking stands out, and [4] 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. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. 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.

(Emphasis added).

Applying this guidance in NY M83020, CBP held that the proposed marking was unacceptable because it was both blind and only 1.7mm in size. In its request for reconsideration, counsel for Bankers argues that the word “China” is large enough so that the ultimate purchaser can easily see it without strain. We note that in HQ 733940, CBP found that lettering which was 1.7mm was the smallest font acceptable as a country of origin marking on a pen barrel. Furthermore, counsel alleges that “the raised letters obviously stand out against the smooth blue plastic on which they are imprinted” and that “a casual inspection to the top of the barrelwould enable the ultimate purchaser to locate the marking.” Finally, counsel alleges that the marking is legible and that the ultimate purchaser may read it without strain. During the August 29th teleconference, Counsel also argued that it would be impossible to place the word “China” closer to the logo given the space constraints of the pen barrel.

Although the word “China” is printed legibly and in an adequate location, the proposed marking violates the country of origin marking standards set forth for pens in HQ 733940. The letters are only slightly raised above the surface of the barrel and blend in with the identically colored background. This is known as “blind marking.” As a general rule, “blind” marking is unacceptable for country of origin purposes. When merchandise is marked as such, the country of origin designation is not immediately visible and often requires strain to locate. See NY L89263, dated January 10, 2006 (holding that the blind marking of two “rescue kits” did not satisfy 19 U.S.C. §1304); NY L88035, dated October 20, 2005 (holding that the blind marking of a reflective sign did not satisfy 19 U.S.C. §1304 because it was small, difficult to see and not in a contrasting color); and NY K85861, dated May 28, 2004 (holding that the blind marking of a musical instrument did not satisfy 19 U.S.C. §1304 because the marking was too small and inconspicuous).

Furthermore, the word “China” is printed in extremely small, blind font while the pen’s logo, “Spector Image,” is printed in large, black lettering. HQ 733940 holds that “whether the marking stands out is dependent on where it appears in relationship to other print on the article.” In relationship to the other print on the article, the country of origin marking does not “stand out” and cannot be found easily and without strain.

Considering the totality of the factors, we find that the country of origin blind marking on the barrel will not be noticed from a casual inspection. Accordingly, the marking on the barrel is not sufficiently legible or conspicuous to satisfy the requirements of 19 CFR 134.41 and 19 U.S.C. 1304. See HQ 735111, October 15, 1993.

In the reconsideration request, counsel has provided CBP with a pen that was allegedly distributed at an ACE seminar ACE is CBP’s Secure Data Portal designed to enhance national border security and expedite lawful trade. It automates and consolidates border processing. . Counsel “assume[s] that since this pen was distributed by Customs, the marking was acceptable.” Counsel therefore asks that we rely on this sample in making our decision. While the article is marked in a similar fashion to the subject merchandise, Bankers has not provided any information as to the circumstances surrounding this pen. There is no evidence that it was supplied by CBP nor is there any indication that the pen was the subject of a CBP ruling or decision. When reconsidering an administrative ruling, CBP may only take into account the merchandise subject to the request. Additional merchandise, even if similar to the protested entries, may not be considered. As a result, the additional pen has no bearing on the subject matter.


The proposed marking for the ballpoint pen, Style number G1079, does not satisfy 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 pens.


NY M83020, dated May 5, 2006 is hereby affirmed.


Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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