HQ 0734290 - Country of origin marking requirements for dog bones, crunchies, cuttlebones, pet supplies, repacking, incapable of being marked, bulk items; 19 CFR 134.25, 19 CFR 134.32(a) - United States International Trade Commision Rulings

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HQ 734290
December 24, 1991

MAR-2-05 CO:R:C:V 734290 RSD

CATEGORY: MARKING

Arthur T. Downey, Esq.
Johnson & Gibbs
1301 K Street, N.W.
Washington, D.C. 20005-3307

RE: Country of origin marking requirements for dog bones, crunchies, cuttlebones, pet supplies, repacking, incapable of being marked, bulk items; 19 CFR 134.25, 19 CFR 134.32(a)

Dear Mr. Downey:

This is in response to your letter dated August 7, 1991, on behalf of your client, Fritz Chemical Co. (Fritz), requesting a ruling on the country of origin marking requirements for rawhide dog bones, crunchies for dogs, and cuttlebones for birds. Additional letter dated November 21, 1991, and December 6, 1991, were received. Samples of these articles were received for our consideration.

FACTS:

Fritz imports two types of chewable articles for dogs, both of which are indigestible: (1) articles made of rawhide that are fashioned into "bones" of various shapes and sizes; and 2) "crunchies" made of a grounded mixture of rawhide scraps and tapioca. The rawhide bones come in approximately ten different sizes and shapes. The crunchies come in more than thirty sizes and shapes. Fritz also imports pieces of the bones of cuttlefish, which are sold for use in bird cages. Birds polish their beaks against the bone, and the cuttlebones provide a dietary supplement.

The rawhide bones are cut from rawhide and shaped and coated to become chewable. The "mini bone" and the "small bone" have a straight center section of rolled rawhide and a knot at each end. The "mini bone" is approximately 2-3 inches long, and the "small bone" is approximately 3-4 inches long. The crunchies are created in a multi-step process: 1) rawhide scraps are ground into fine pieces in a grinder-type machine; 2) the ground pieces are mixed with tapioca; 3) the mixture is extruded by machine into pieces 10-15 feet long; 4) the pieces are oven dried; and 5) then cut by machine into differing length, shapes and thicknesses. The "cuttlebones" are fragments of bone from a cuttle fish.

Fritz claims that the rawhide bones, crunchies and cuttlebones are incapable of being marked and proposes instead to indicate the country of origin on the bulk packages in which they are imported. The bulk packages would range from approximately 1.5 to 2.5 pounds each. The number of articles in each package would vary depending on the size of the articles. Fritz sells directly to distributors. Distributors and retailers will also buy from Fritz's wholesale outlets. The ultimate purchaser may occasionally purchase these products in the original bulk packages, which are marked with the country of origin. Distributors might repackage the articles into smaller lots, but usually will not. More than likely, retailers would remove the articles from the bulk package and place the articles in bins so that their customers can obtain any amount they want. A pet store owner may also place the cuttlebones in bird cages in the shop and place the rest in bins.

ISSUE:

What is the country of origin marking requirements for the pet rawhide bones, crunchies and cuttlebones that are imported in bulk packages and are likely to be removed from package and sold in bins?

Are the imported articles incapable of being individually marked?

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. "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." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940). C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S, is able to find the marking easily and read it without strain. 19 CFR 134.32(a) provides an exception to marking an article, if that article is incapable of being marked.

It is first necessary to determine whether the articles in question are incapable of being marked. You claim that the crunchies cannot be marked because any marking technique would be potentially harmful to the animal or make the product unmarketable. The porous, rough, uneven, texture of the crunchies produces a surface that is not suitable for stick-on labels, inks or dyes. Stick-on labels would normally not adhere to the dog bones. If a particularly strong glue was used, it is possible that a label might stick, but the residue of the glue would remain after the sticker is removed, and it could be potentially harmful to the animal. Inks and dyes would disburse into the porous surface making any marking illegible, and could also be potentially harmful. Tagging each individual crunchie would require that a hole be drilled in each one. Because of the crunchie's brittleness, the action of drilling a hole for tagging purposes would result in a substantial amount of breakage. The same problems are present with marking the individual rawhide dog bones with their country of origin. The surface is very rough, and it is doubtful that a stick-on label would stay on the product unless a particularly strong glue, which could be harmful to the animal, is applied. Ink or dyes could also be potentially harmful. For a hangtag to stay on the smaller sized rawhide bones a hole would have to be drilled in each of the bones.

Similarly, the cuttlebones have a porous and textured surface which is not suitable for stick-on labels because they would fall off. Any glue strong enough to hold a sticker would leave a potentially harmful residue, and customers would find removing the sticker inconvenient. The bones are also very fragile and any labeling process requiring pressure (e.g. stamping) could result in a substantial amount of breakage. Attempting to make holes for tags would result in substantial breakage because the cuttlebones are very brittle. In addition, using inks or dyes could be potentially harmful to the birds who ingest small amount of the cuttlebone's calcium.

Based on the above representations, we find that the individual crunchies, rawhide dog bones, and cuttlebones are incapable of being marked and accordingly under 19 CFR 134.32(a), they are excepted from country of origin marking. However, under 19 CFR 134.22 when an article is excepted from the marking requirements, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall marked to indicate the country origin of the article. Although the articles will be imported in properly marked containers, in most cases they will be taken out of these containers and in some cases, repacked prior to reaching the ultimate purchaser. As such, the certification requirements set forth in 19 CFR 134.25 will apply where by the importer shall certify to the district director that (1) the new containers, unless excepted, shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the container(s) will permit, in such manner as to indicate the country of origin of the article(s) to the ultimate purchaser(s) in accordance with the requirements of 19 U.S.C. 1304 and 19 CFR Part 134; or that if the article(s) is(are) intended to be sold or transferred to a subsequent purchaser or repacker, the purchaser or transferee, will be notified in writing at the time of sale or transfer, of the marking requirements. The importer must conform to these requirements. It should be noted, however that Customs has determined that open grocery bins or displays of bulk products are not considered containers for purposes of 19 CFR 134.25. See 733798, April 11, 1991. Accordingly, if they are sold in bins to the ultimate purchaser, there is no requirement that the bins be marked to indicate the country of origin the crunchies, rawhide dog bones, or the cuttlebones.

HOLDING:

The individual doggie bones, crunchies, and cuttlebones are incapable of being marked to indicate their country of origin and therefore are excepted from individual country of origin marking under 19 CFR 134.32(a); only their containers are required to be marked. Because some of the imported articles will be repacked after importation the certification requirements of 19 CFR 134.25 must be followed.

Sincerely,

John Durant, Director

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