HQ 0734364 - Country of Origin Marking - Women's Disposable Undergarments With Carrying Cases; Repacking; NY Ruling 866721; 19 CFR 134.34; Kits. - United States International Trade Commision Rulings

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HQ 734364
February 13, 1992

MAR-2-05 CO:R:C:V 734364 NL

CATEGORY: MARKING

Mark J. Williams
Mark J. Williams Customs House Broker
P.O. Box 90656
Los Angeles, CA 90009

RE: Country of Origin Marking - Women's Disposable Undergarments With Carrying Cases; Repacking; NY Ruling 866721; 19 CFR 134.34; Kits.

Dear Mr. Williams:

This is in response to your letter dated August 30, 1991, on behalf of your client, In-Case Products, Inc., to the Area Director of Customs, New York, which was forwarded to Customs Headquarters on October 1, 1991, for a ruling on country of origin marking issues. The Area Director has ruled previously (NY 866721), on the tariff classification of the above-referenced articles.

FACTS:

The articles to be imported consist of women's disposable panties constructed in China from a nonwoven blend of 90 percent nylon and 10 percent polyester, and carrying cases of eelskin, cowhide, and imitation suede from several countries.

It is anticipated that the articles would be imported in bulk, to be packaged thereafter by In-Case in three configurations as shown by the sample packages submitted. The first package would contain a cowhide case, into which are packed five pairs of panties. On the front of the package appear the words, "Made of soft Cowhide Imported from Indonesia". On one side panel appear the words, "Assembled and Packaged in USA by: In-Case Systems, Inc", followed by a U.S. address. A second sample package contains only a simulated suede case made in Korea. One side panel bears the same "Assembled in USA..." language as the first package. The other side panel bears the words, "Made in Korea to the strict specifications of ...[etc]". The third sample package, containing an eelskin case, uses the same markings as the second package.

The Area Director has supplied this office with a memorandum concerning the country of origin marking requirements for these articles.

ISSUES:

What marking requirements apply to the imported panties, case, and packaging?

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. 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 at 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), an article may be excepted from individual country of origin marking if the marking of its container will reasonably indicate its country of origin to the ultimate purchaser in the U.S. Upon examination of the sample packaging it is our opinion that the proposed marking will not indicate the country of origin of its contents to the ultimate purchaser in the U.S. The first package, which contains imported panties and case, has no reference at all to the origin of the panties. This office sees no reason for this article to be excepted from marking; its inclusion after importation in the composite convenience kit consisting of a case and panties does not affect the panties' character as a separate article of foreign origin. The package must be marked to indicate clearly the country of origin of both the panties (China) and the case.

The second difficulty with the proposed marking of the packages, common to all three packages, involves the requirements of 19 CFR 134.46. That section provides that in any case in which the name of a country or locality other than the country of origin appears on an article or its container, the name of the country of origin must appear, in close proximity and in lettering of comparable size, accompanied by words such as "Made in" or "Product of". Here, the presence on one side panel of the phrase, "Assembled and Packaged in USA..." accompanied by In-Case's U.S. address, triggers this requirement. The fact that the country of origin (of the pouch) is stated on the opposite side panel is not sufficient, for in applying 19 CFR 134.46 Customs has determined that "close proximity" means that the marking of origin must appear on the same panel as the names of countries or locations other than the country of origin. See C.S.D. 86-19, and Headquarters Ruling Letters (HRL's) 708994 (April 24, 1978) and 733084 (March 19, 1990).

Accordingly, in order to satisfy the requirements for exception under 19 CFR 134.32(d) and the requirements of 19 CFR 134.46, several modifications in the packaging will be required. First, both the origin of the case and the panties must be indicated clearly on the first package which will contain them. Eg., "Case made in ____, Panties made in China".) If reference is made to the origin of the cowhide on the front of the package, this panel must also be marked to indicate the country of origin of the case and the panties in accordance with the requirements of 19 CFR 134.46. Second, to the extent that all three packages refer to "Assembled and Packaged in USA" and to a U.S. address, the country of origin must be stated, in accordance with 19 CFR 134.46, on the same panel. We note that if this is done, marking on this panel will be considered conspicuous within the meaning of 19 U.S.C. 1304.

As proposed, these articles would not be individually marked at importation. Unless placed in marked packaging which satisfies the requirements of 19 CFR 134.32(d), both the panties and the three cases would be subject to individual marking. Under procedures set forth at 19 CFR 134.34, if an importer satisfies Customs officials that after repacking the articles will be repacked such that their containers satisfy the requirements of 19 U.S.C. 1304, the articles may be excepted from individual marking. Our review of the proposed packaging indicates that with the changes noted above, the marking of the containers will be acceptable. However, approval for this exception is within the discretion of the district director, who may require verification, certification, samples, or such other demonstration as may be necessary to satisfy himself that in all foreseeable circumstances the articles will reach the ultimate purchaser in its properly marked container, and that Customs requirements will be met in all other respects.

It is noted that these articles may be subject to other marking and labeling requirements under the Textile Fiber Products Identification Act (15 U.S.C. 70) and its regulations (16 CFR 303). Specifically, you may wish to seek advice from the Federal Trade Commission concerning whether either the panties or cases are required to be individually marked with labels indicating country of origin and fiber content.

Also, in view of the fact that In-Case imports finished articles and merely packages them in the U.S., the acceptability of the phrase "Assembled and Packaged in the U.S. may be open to challenge under statutes administered by the Federal Trade Commission. We suggest that you contact the Division of Enforcement, Federal Trade Commission, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508.

HOLDING:

The marking of the packages will not satisfy the requirements of 19 U.S.C. 1304 and Part 134, Customs Regulations until modified as indicated above. The articles otherwise appear to be eligible for exception in the discretion of the district director as set forth at 19 CFR 134.34.

Sincerely,

John Durant
Director, Commercial

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