Country of origin marking for Printed Paperboard Discs; container marking; ultimate purchaser; POG's.

HQ 735148 November 23, 1993 MAR-2-05 CO:R:C:V 735148 RC CATEGORY: MARKING Mr. Rodney T. Lim 121 Madison Avenue, Suite 7L New York, New York 10016 RE: Country of origin marking for Printed Paperboard Discs; container marking; ultimate purchaser; POG's. Dear Mr Lim: This is in response to your letter of February 18, 1993, forwarded to us by the National Import Specialist (NIS) in which you request a tariff classification and country of origin marking ruling for printed paperboard discs manufactured in Indonesia. The classification issue was addressed in a separate reply. FACTS: The articles are circular discs of paperboard, 1-11/16 inch in diameter and 0.0415 inch in thickness. They are printed on one face with text and a picture. According to information furnished by the NIS, these items are known as POG's. The name is derived from Passion fruit, Orange, Guava. Similar discs were originally used to cap a drink made from these fruits. The POG's are sometimes used to play a game, but they are principally used today in the United States as collectibles. The POG's will be sold in boxes containing quantities of 50. You indicate that the POG's are imported in their retail containers. The NIS advised us that some of the POG's may be distributed individually. We do not have a sample available for review. ISSUE: Whether it is permissible to indicate the country of origin on the packaging containing the POG's in lieu of marking the POG's individually. LAW AND ANALYSIS: Section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that articles of foreign origin (or their containers) be marked in a conspicuous place legibly, indelibly, and permanently to indicate to the ultimate purchaser the English name of the country of origin of the article. As provided under section 134.32(d), Customs Regulations (19 CFR 134.32(d)), an article is excepted from marking if the marking of the article's container will reasonably indicate the origin of such article. Customs must be satisfied that in all foreseeable circumstances the article will reach the ultimate purchaser in a properly marked container. The "ultimate purchaser" is generally defined, in section 134.1(d), Customs Regulations (19 CFR 134.1(d)), as the last person in the United States who will receive the article in the form in which it was imported. Section 134.1(d)(4) states that if the imported article is distributed as a gift the recipient is the "ultimate purchaser." An exception to the general marking rule is outlined in 19 U.S.C. 1304(a)(3)(F) which provides that articles imported for use by the importer and not intended for sale in their imported or any other form need not be marked. This exception applies to trade tools and demonstrative samples which are not intended for sale or donation. This exception does not apply to the instant case, because the POG's may be given away to promote businesses. They are not considered to be trade tools because the recipients, rather than the promoters, will retain or dispose of them. Pursuant to the regulations, either the POG's themselves or their packaging must be marked to indicate their country of origin. To the extent that the POG's are imported in retail containers which are marked with the country of origin and are distributed or sold in these containers, the ultimate purchaser is advised of its country of origin and the individual POG's do not also need to be marked. However, the NIS advised us that at least some POG's may be removed from the marked containers and distributed for business promotions, gratuitously or for sale. The marking of the containers in lieu of the POG's is acceptable only if you can demonstrate to Customs officials at the port of entry that they will be distributed only in the marked box. Otherwise each POG must be marked. HOLDING: It is permissible to indicate the country of origin on the container in which the POG's are imported, rather than on the individual POG's, only if Customs officials at the port of entry are satisfied that the POG's will reach the ultimate purchaser in the marked container unopened. However, if any POG is removed from this container prior to receipt by the ultimate purchaser, distributed gratuitously or for sale, then each POG shall indicate the country of origin at the time of importation. Sincerely, John Durant, Director Commercial Rulings Division cc: Area Director of Customs