April 28, 2004 CBP Bulletin Notice on Country of Origin Marking for Safety Eyeglass Frames Combined with Prescription Lenses in the U.S. for Sale to Employers

CBP also states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by May 28, 2004, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

CBP also states that the proposed revocations notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Revocation of Four Rulings

Country of origin marking for safety eyeglass frames combined with prescription lenses in the U.S. for sale to employers. According to CBP, at issue are imported safety eyeglass frames (assembled or unassembled), combined with prescription lenses in the U.S. to render completed safety glasses for sale to employers.

CBP states that it has previously recognized that where an employer provides a particular item at the employer's expense for use exclusively at work by employees (gloves, aprons, etc.), the employee is not necessarily the ultimate purchaser of the item provided. Rather, CBP determined that the imported merchandise may be exempted from bearing individual country of origin markings if the containers in which the items reach the ultimate purchaser (either the employer or the U.S. manufacturer that substantially transforms the items) are properly marked.

In the past, CBP has applied this "employer-provided" marking exemption to situations involving safety eyeglass frames, and has held that the ultimate purchasers of the imported frames are the optical laboratories that insert the prescription lenses into the frames.

However, CBP states that upon further review, it has determined that, pursuant to 19 USC 1304, this "employer-provided" marking exception may not be applied to exempt such frames from bearing individual country of origin markings.

In support of this determination, CBP notes that: (a) increasingly, the circumstances surrounding the selection of safety eyeglasses are becoming more similar to the circumstances under which ordinary prescriptive eyewear is routinely selected; (b) the individual employee frequently retains at least some discretion in selecting the frames thereby rendering the employer-provided marking exception inapplicable; (c) employees are often required by their employers to contribute financially toward the purchase price of the safety frames; and (d) in many instances, it is often impracticable for an importer of safety frames to identify upon importation the precise portion of a shipment that is actually destined for use by employees in connection with employer-provided programs as opposed to the portion destined for sale to private individuals.

Therefore, CBP is proposing to issue HQ 562975, HQ 562976, HQ 562977, and HQ 562978 in order to revoke HRL 557996, HRL 734733, HRL 734258, and HRL 729649, respectively, and any other rulings not specifically identified, to reflect that the "employer-provided" marking exception may not be applied to exempt the subject frames from bearing individual country of origin markings.

April 28, 2004 CBP Bulletin (Vol. 38, No. 18) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2004/vol38_04282004_no_18/