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HQ 735362


May 31, 1994

Mar-2-05 CO:R:C:V 735362 AT

CATEGORY: MARKING

Mr. Mark Mainwaring
Overseas Manufacturing Systems of America, Inc. 6969 Industrial
El Paso, Texas 79915

RE: Country of origin marking of imported jeans assembled from U.S. components; U.S. locality reference; close proximity; 19 CFR 134.46

Dear Mr. Mainwaring:

This is in response to your letter dated August 11, 1993, on behalf of Jay Garment Co., ("Jay Garment"), requesting a ruling on the applicable country of origin marking requirements for imported jeans from Mexico. A sample pair of jeans with a proposed country of origin marking was submitted with your letter. We regret the delay in responding.

FACTS:

You state that Jay Garment intends to import jeans into the U.S. from Mexico. You also state that the jeans will be manufactured in Mexico and upon entry into the U..S. will be entered under subheading 9802.00.80, Harmonized Tariff Schedules of the United States ("HTSUS").

The sample pair of jeans has a fly with a zipper closure, a button closure on the waistband, two rear pockets and three front pockets. The garment's legs are hemmed and its waistband is encircled with belt loops. The jeans have a paper label securely affixed to the fly's interior right side, slightly below the waistband. The words "Assembled in Mexico" are printed on the paper label in black lettering approximately 4 point (a point is a unit of measurement approximately equal to 0.01384 inches or nearly 1/72 inches). A second label is sewn to the exterior right side of the rear waist band. The label depicts a western scene and at its bottom the words "Founded Kemmerer WYO 1902" are printed in blue lettering approximately 4 point. Other information such as the style, waist size and inseam size also appears on the label. A third paper label is affixed to the right rear pocket of the jean. The style "Plain Pockets" is printed in large bold lettering. The fiber content, waist size and inseam are also printed on the label.

You have requested a determination as to whether the phrase "Founded Kemmerer WYO 1902" printed on the second label triggers the special marking requirements set forth in 19 CFR 134.46, and if so, whether placing the country of origin marking "Assembled in Mexico" on the first label satisfies the close proximity requirement of 19 CFR 134.46.

ISSUES:

Does the marking on the jeans as described above satisfy the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134?

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, 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. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines ultimate purchaser as "generally the last person in the U.S. who will receive the article in the form in which it was imported." If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the jeans is the consumer who purchases the product at retail.

Does the phrase "Founded Kemmerer WYO 1902" printed on the second label trigger the special marking requirements of 19 CFR 134.46?

Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city 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 this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported goods.

It is your position that the phrase "Founded Kemmerer WYO 1902" would not confuse or mislead an ultimate purchaser into believing that the jeans were manufactured in the U.S. rather than Mexico because he/she would determine that the phrase was only part of the design of the garment and not an indication as to the article's origin. Therefore, you believe that this phrase does not trigger the special marking requirements of 19 CFR 134.46. We disagree.

An ultimate purchaser who examines the jeans could be confused or misled into believing that the garment was manufactured in the U.S. (Wyoming) from reading the phrase "Founded Kemmerer WYO 1902" on the label. Also in our opinion, it would be very unlikely that an ultimate purchaser would determine or believe that the phrase "Founded Kemmerer WYO 1902" was only part of the design of the jeans and not an indication of the garments country of origin. There appears to be no relation to the phrase when compared to the western design above nor can it be considered part of the design of the jeans being that it appears in very small lettering on a patch affixed to the exterior of the garment. See, HQ 733833 (February 19, 1991); the letters "USA" printed alone next to the name "Brittania" on a leather-like patch affixed to a pair of jeans potentionally could mislead an ultimate purchaser and thus were considered to be an indication of origin rather than part of the design of the jeans triggering the special marking requirements of 19 CFR 134.46.

Therefore, we find that the phrase "Founded Kemmerer WYO 1902" triggers the special marking requirements of 19 CFR 134.46 and the actual country of origin of the jeans "Mexico" must appear in close proximity to the U.S. reference and in lettering of at least a comparable size.

Does the marking "Assembled in Mexico" printed on the paper label affixed to the fly's interior right side, slightly below the waistband of the jeans satisfy the special marking requirements of 19 CFR 134.46?

In this case, the country of origin marking "Assembled in Mexico" is affixed to the fly's interior right side of the jeans whereas the U.S. locality appears on the exterior right side of the rear waistband of the jeans. Customs has consistently held that in order to satisfy the close proximity requirement of 19 CFR 134.46, the country of origin must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears. See, HQ 734783 (April 30, 1993); country of origin marking "Handstitched Product of Pakistan" printed on a soccer ball manufactured in Pakistan satisfied the close proximity requirements of 19 CFR 134.46 because it appeared on the same side and was visible at the same time as the non-origin reference "Denmark". Here, we find that the paper label marked with the country of origin on the fly's interior right side of the jeans can not be considered to be in close proximity to the non-origin reference "WYO" which appears on the exterior right side waistband of the jean. The country of origin marking is neither on the same side of the jean where the U.S. reference "WYO" appears nor is the country of origin "Mexico" visible at the same time as the U.S. reference. Accordingly, the country of origin marking "Assembled in Mexico" printed on the paper label does not satisfy the close proximity requirement of 19 CFR 134.46 and is not an acceptable country of origin marking for the imported jeans.

However, if the country of origin marking "Assembled in Mexico" were to appear on the second label or on the third label (affixed to the right rear pocket) of the jeans the close proximity requirement of 19 CFR 134.46 would be satisfied.

HOLDING:

The phrase "Founded Kemmerer WYO 1902" which appears on the second label affixed to the exterior right side waistband of the jeans triggers the special marking requirements of 19 CFR 134.46.

The country of origin marking "Assembled in Mexico" printed on a paper label affixed to the jeans in the manner described above does not satisfy the close proximity requirement of 19 CFR 134.46 and is not an acceptable country of origin marking for the imported jeans.

Sincerely,

John Durant, Director

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