HQ 0732736 - Country of origin marking of imported tearsheets - United States International Trade Commision Rulings

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HQ 732736
December 29, 1989

MAR-2-05 CO:R:C:V 732736 KG

CATEGORY: MARKING

Robert Ambriano
Meadows Wye & Co., Inc.
2506 Forest Avenue
Staten Island, N.Y. 10303

RE: Country of origin marking of imported tearsheets

Dear Mr. Ambriano:

This is in response to your letter of September 13, 1989, requesting a country of origin ruling regarding imported tearsheets. A sample journal and tearsheets were submitted.

FACTS:

Tearsheets are being imported from Japan by your client in conjunction with journals being printed in Japan. The journal is a collection of graphic design advertisements prepared by the individual advertisers which is printed in Japan and marked with the country of origin on the copyright page. The country of origin marking for the journal is in the same size and color ink as all the other copyright, publishing and printing information contained on the page.

As part of the contract of advertisement for this journal, each advertiser is given approximately 1500 individual tearsheets for their own use. Each tearsheet is an actual page appearing in the journal which contains, as part of its textual material, the name and U.S. address of the U.S. advertiser. The tearsheets submitted are marked with the country of origin in the lower corner of the cover page, which is otherwise blank. The tearsheets for each individual advertiser are packaged in boxes which are sent to the U.S. advertiser. The boxes are marked with the country of origin.

ISSUE:

Whether the tearsheets are required by section 304 of the Tariff Act of 1930, as amended, to be individually marked with the 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. The Court of International Trade stated in Koru North America v. United States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297, 302 C.A.D. 104 (1940), where the court stated that: "Congress intended 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. The ultimate purchaser is defined in 19 CFR 134.1(d) as generally the last person in the U.S. who will receive the article in the form in which it was imported. Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., other than the name of the country or locality in which the article was manufactured or produced, appears on an imported article or its container, 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.

The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser of the origin of the imported article. The U.S. address of the advertiser printed inside the tearsheet is placed just below the name of the advertiser and any reader would clearly understand from its placement and context that the U.S. address is not a country of origin marking. There is no possibility in this case that the U.S. address of the advertiser placed below the name of the advertiser would confuse or mislead an ultimate purchaser. Further, if the tearsheets are not distributed and are only used in-house, clearly the advertiser knows that the U.S. address is its address and not a country of origin marking.

Further, section 134.32, Customs Regulations (19 CFR 134.32), provides general exceptions to marking requirements. Articles for which the marking of the containers will reasonably indicate the origin of the articles are excepted from individual country of origin marking by 19 CFR 134.32(d). A tearsheet is defined in the Random House College Dictionary as "a sheet or page torn from a publication, especially one containing an advertisement and sent to the advertiser as proof of publication." As discussed above, the purpose of the marking law is to inform the ultimate purchaser of the country of origin of an imported article. If the advertiser keeps the tearsheets in- house for its own use and they are not distributed to potential clients, the advertiser would be considered the ultimate purchaser. Since the advertiser receives the tearsheets in boxes which are marked with the country of origin, there would be no need to mark the individual tearsheets. The tearsheets are excepted from country of origin marking pursuant to 19 CFR 134.32(d) as long as the boxes in which the advertiser receives the tearsheets are properly marked with the country of origin and the advertiser keeps the tearsheets in-house and does not distribute them to potential clients.

However, if the tearsheets are distributed by the advertiser to potential clients, a long line of ruling letters have concluded that recipients of advertising material are considered the ultimate purchaser of that advertising material. Therefore, tearsheets to be distributed to potential clients must be marked with the country of origin. The tearsheets submitted, which were marked on the outside lower corner, are legibly and prominently marked and satisfy the country of origin marking requirements.

HOLDING:

The U.S. address of the advertiser printed on the imported tearsheets does not trigger the special marking requirements of 19 CFR 134.46. If the importer can satisfy Customs officials at the port of entry that the imported tearsheets are only used in- house by the advertiser and are not distributed, the tearsheets are excepted from individual country of origin marking pursuant to 19 CFR 134.32(d) as long as the boxes in which the U.S.advertiser receives the tearsheets are properly marked with the country of origin. If the advertiser does distribute the imported tearsheets to potential or existing clients, the tearsheets must be individually marked. The sample tearsheets submitted, which were individually marked with the country of origin in the lower corner of the cover page, satisfy the country of origin marking requirements.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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