Country of origin marking requirements for a tungsten ring, eyeglasses and sunglasses from China.

June 29, 2015 HQ H252642 CLA-2 OT:RR:CTF:TCM H252642 TSM CATEGORY: Marking Ms. Lorraine R. Bregman Haband Company LLC 1 International Blvd. Suite 800 Mahwah, NJ 07495 RE: Country of origin marking requirements for a tungsten ring, eyeglasses and sunglasses from China. Dear Ms. Bregman: This is in reply to your letter, dated April 1, 2014, requesting a ruling concerning the country of origin marking requirements for a certain tungsten ring, eyeglasses and sunglasses from China. Photographs were submitted with your request. FACTS: The merchandise at issue consists of a tungsten ring, eyeglasses and sunglasses from China. You state that the subject tungsten ring will be packaged in a box, which will then be packaged in a clear plastic bag that has ridges allowing the bag to be press-sealed (6 inches x 3.5 inches). The plastic bag will be marked with the country of origin, while the ring itself and the box will not be marked. It is stated that the ring will be sold to the ultimate purchaser as packaged in the box and bag. Each pair of eyeglasses and sunglasses will be packaged in either a drawstring pouch or a fitted textile pouch, containing an inner tag indicating the country of origin of the pouch. The eyeglasses and sunglasses themselves will not be marked. The eyeglasses and sunglasses, packaged inside the drawstring or fitted textile pouches, will subsequently be packaged in boxes as follows: either one pair of eyeglasses and three pairs of sunglasses or one pair of eyeglasses and six pairs of sunglasses will be packaged together in each box. The boxes holding the eyeglasses and sunglasses will be visibly marked with the origin of the eyeglasses and sunglasses. It is stated that the boxes containing the eyeglasses and sunglasses will be sold to the ultimate purchaser. ISSUE: Whether the proposed country of origin marking methods for the tungsten ring, eyeglasses and sunglasses are consistent with the marking requirements of 19 U.S.C. § 1304 and 19 C.F.R. § 134. 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 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.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940). Part 134 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(b), CBP Regulations (19 C.F.R. § 134.1(b)), defines “country of origin” as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. 19 C.F.R. § 134.1(d) defines the "ultimate purchaser" generally as the last person in the U.S. who will receive the article in the form in which it was imported. You do not state who the ultimate purchaser will be; however, we find it is likely that the articles at issue would be removed from the boxes prior to purchase for examination and therefore they could be separated from their packaging. 19 C.F.R. § 134.41(b) states that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article (or its container) until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. In Headquarters Ruling Letter (HQ) 735218, dated January 11, 1994, Customs ruled that silver pendants imported in plastic bags marked with the country of origin of the pendants were not legally marked because it was likely that the pendants would be removed from the bags prior to retail sale. Rather, it was determined that string tags or adhesive stickers would be acceptable methods of marking the pendants. You state that neither the subject tungsten ring nor the box in which it will be packaged will be marked. Only the plastic bag holding both the ring and the box will feature country of origin markings. You claim that this method of country of origin marking is consistent with the one at issue in New York Ruling Letter (NY) B80117, dated December 23, 1996. In this regard, we note that NY B80117 provides that country of origin marking methods where the marking is featured on polybags that are not heat sealed, are not in compliance with the marking requirements since there is no assurance that those bags would remain unopened until reaching the ultimate purchaser. In the present case, we also find that there is no assurance that, if packaged as you propose, the subject ring will reach the ultimate purchaser packaged inside a reusable plastic bag with country of origin markings. If the ring is removed from the bag, its country of origin can no longer be identified by the ultimate purchaser, as the ring itself would not display country of origin markings. Accordingly, we conclude that the proposed country of origin marking method for the tungsten ring is not consistent with the marking requirements of 19 U.S.C. § 1304 and 19 C.F.R. § 134. We note that an appropriate method of country of origin marking for the subject ring would be to place the marking on the other side of the tag indicating the ring size. You further state that the eyeglasses and sunglasses themselves will not contain any country of origin markings and that, once placed inside the drawstring or fitted textile pouches, they will subsequently be packaged in boxes as follows: either one pair of eyeglasses and three pairs of sunglasses or one pair of eyeglasses and six pairs of sunglasses will be packaged together in each box. The boxes holding the eyeglasses and sunglasses will be visibly marked with country of origin markings. Similar to the tungsten ring, we find that there is no assurance that, if packaged as you propose, the subject eyeglasses and sunglasses will reach the ultimate purchaser packaged inside the boxes holding multiple pairs of eyeglasses and sunglasses. If they are removed from the boxes, their country of origin can no longer be identified by the ultimate purchaser as the eyeglasses and sunglasses themselves would not bear any country of origin markings. Accordingly, we conclude that the proposed country of origin marking method for the eyeglasses and sunglasses is not consistent with the marking requirements of 19 U.S.C. § 1304 and 19 C.F.R. § 134. Similar to the tungsten ring, we conclude that to comply with the marking requirements, each pair of the subject eyeglasses and sunglasses must bear country of origin markings. See HQ 732228, dated November 16, 1989. Although you indicate that the subject eyeglasses and sunglasses will be sold to the ultimate purchaser in marked boxes holding multiple pairs, it cannot be verified that they will not be sold individually to the ultimate purchaser. In this regard, please also note that should the eyeglasses and sunglasses be imported in boxes holding multiple pairs, you will be required to certify to the port director that if the individual pairs are repacked after importation, the requirements of 19 C.F.R. § 134.26(a) must be satisfied. Lastly, 19 C.F.R. § 134.23 provides that containers or holders designed for or capable of reuse after the contents have been consumed, whether imported full or empty, must be individually marked to indicate the country of their own origin with a marking such as, “Container Made in (name of country).” In this case, you state that each pair of the eyeglasses and sunglasses at issue will be packaged in either a drawstring pouch or a fitted textile pouch, containing an inner tag marked on the inside with a “Made in China” label. We find this method of country of origin marking for the subject pouches to be consistent with the requirements of 19 C.F.R. § 134.23. HOLDING: The proposed country of origin marking methods for the tungsten ring, eyeglasses and sunglasses at issue are not consistent with the marking requirements of 19 U.S.C. § 1304 and 19 C.F.R. § 134. 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 CBP officer handling the transaction. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification and Marking Branch