Country of origin markings for imported ski poles; conspicuous marking; 19 CFR 134.41; 19 CFR 134.46; HRL 561384

HQ 561448 October 1, 1999 MAR-05 RR:CR:SM 561448 RSD CATEGORY: MARKING Mark J. Schlant, Esq. Zdarsky, Sawicki & Agostinelli 404 Cathedral Place 298 Main Street Buffalo, New York 14202 RE: Country of origin markings for imported ski poles; conspicuous marking; 19 CFR 134.41; 19 CFR 134.46; HRL 561384 Dear Mr. Schlant: This is in response to your letter dated July 13, 1999, on behalf of Leki U.S.A., Inc., (Leki) regarding the country of origin marking requirements for imported ski poles. You submitted sample ski poles for our consideration. FACTS: Leki is a domestic corporation which sells imported hiking poles, trekking poles, ski poles, and other related poles. The submitted samples in this case are various styles of ski poles, which were made in the Czech Republic. The sample poles with certain exceptions are marked “Made in Czech Republic”. Most of these country of origin markings are in a contrasting color against the background color of the poles. In addition, most of the poles also have a statement in larger, more prominent letters, which indicates that they were designed and engineered in Germany. ISSUE: Whether the sample ski poles are conspicuously and legibly marked with their country of origin. 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. Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 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. That section further provides that the degree of permanence should be at least sufficient to insure that in any reasonably foreseeable circumstance the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed. Section 134.46, Customs Regulations (19 CFR 134.46) contains more restrictive marking requirements designed to alleviate the possibility of misleading an ultimate purchaser with regard to the country of origin of an imported article. 19 CFR 134.46 provides 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 location 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 appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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. Previously, in order to satisfy 19 CFR 134.46, Leki placed an additional adhesive sticker on the poles (in close proximity to the words “German Design and Engineering”) which indicated the poles’ country of origin. Because of the additional expense involved in putting the stickers on the poles, Leki asked Customs Headquarters whether it could cease using the additional stickers and rely only on the permanent markings on the poles to indicate their country of origin. In Headquarters Ruling Letter (HRL) 561384, dated June 21, 1999, Customs reviewed the permanent country of origin markings on a set of sample poles which Leki submitted. After reviewing the sample poles, we noted that, with certain exceptions, the country of origin markings could be found from a casual inspection and could be read without strain. As such, we concluded that the permanent markings on these poles satisfied the requirements for conspicuousness and legibility as set forth in 19 CFR 134.41(b), and thus met the statutory and regulatory requirements of the country of origin marking law.  Although in HRL 561384 we found that the prominent reference to “German Design and Engineering” on the poles triggered the special marking requirements of 19 CFR 134.46, we also ruled that due to the increased costs and burdens resulting from putting stickers on the poles, a temporary exception from complying with the requirements of 19 CFR 134.46 would be permitted pursuant to 19 CFR 134.32(o) until the present inventory of poles was exhausted or until the end of 1999 whichever occurred first. After their inventory of poles was exhausted, Leki indicated that they would undertake a graphic design modification which would correct any marking problems present on the current year models. Leki now wishes to verify whether the permanent country of origin markings on ski poles which will be imported in the near future are acceptable. Therefore, Leki has submitted a group of sample ski poles for our examination so that Customs may rule on whether the ski poles are adequately marked. Accordingly, we have reviewed the country of origin markings on the sample ski poles that Leki submitted. After completing this review, other than exceptions which are noted below, we believe that the country of origin markings can be found from a casual inspection and can be read without strain. Therefore, we find that the permanent country of origin markings on most of the ski poles meet the requirements of 19 CFR 134.41(b) for conspicuousness and legibility, and thus satisfy the requirements of 19 U.S.C. 1304. However, several ski poles were either not marked with their country of origin or the markings present on the poles were so difficult to find and read that they are not conspicuous and legible. We have found that the following ski poles are not acceptably marked to indicate their country of origin: Model Number Model Name E1750-99 Mirage E1751-99 Mirage E1752-99 Mirage E1813-99 Synergy E1814-99 Synergy E1815-99 Synergy E1545-99 World Cup Lite E1550-99 Gs Jr. E1895-99 Nordic Rental E1901-99 Nordic Rental 1903-99 Nordic Rental Counsel also indicates that the E1873-99, W/c Giant Slalom and E1892-99, High Perfor Demo., models poles have not been marked with their country of origin, but we could not find samples of these particular ski poles in the group of poles that Leki submitted. However, we will assume that counsel’s representations regarding these pole models are accurate. In HRL 561384, we allowed a temporary exception to compliance with the marking requirements of 19 CFR 134.46 pursuant to 19 CFR 134.32(o), because of the economic consequences of complying with 19 CFR 134.46 under the specific circumstances discussed above. We wish to reiterate that this exception remains applicable until the present inventory of poles imported by Leki is exhausted, or until the end of 1999, whichever occurs first. After the present inventory of poles is exhausted, counsel has indicated that the references to “German Design and Engineering” will not appear on the poles. As was also stated in HRL 561384, the country of origin markings on all poles entered on or after January 1, 2000, must be conspicuous and legible, and if a non-origin geographical reference appears on the poles, the special marking requirements of 19 CFR 134.46 must be fully met as well. HOLDING: With the exceptions noted above, the country of origin markings on the sample ski poles are sufficiently conspicuous and legible to meet the requirements of 19 CFR 134.41(b) and 19 U.S.C. 1304. As indicated in HRL 561384, a temporary exception from the special marking requirements of 19 CFR 134.46 remains in effect until the present inventory of poles imported by Leki is exhausted or until the end of 1999, whichever occurs first. 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 Commercial Rulings Division