HQ 0735452 - Country of origin marking of marking requirements for date book student planners with a name and address of a school on the front cover; conspicuous location; NAFTA Marking; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 735452
May 31, 1994

MAR-2-05 CO:R:C:V 735452 RSD

CATEGORY: MARKING

Mr. Ed Baker
A.N. Deringer Inc.
173 W. Service Road
Champlain, New York 12919

RE: Country of origin marking of marking requirements for date book student planners with a name and address of a school on the front cover; conspicuous location; NAFTA Marking; 19 CFR 134.46

Dear Mr. Baker:

This is in response to your letter dated December 7, 1993, on behalf of Select Agendas requesting a ruling on the country of origin marking requirements for a date book with the name and address of a school printed on the front cover. We regret the delay in responding to your letter. Your client asks four questions regarding the marking of these date books. As will be further explained below, we do not have sufficient information to answer three of the four questions. A sample of the date book was submitted with your ruling request.

FACTS:

Select Agenda is a Canadian publishing company manufacturing date books or student planners entirely in Montreal, Canada. The student planners will be sold in the United States and Canada. The student planner is a date book in which each day of the school year has a separate space so that students can record information. It also contains information regarding the school policies and other relevant topics. The sample student planner has the name and address of a high school printed on the front cover. The front page of the student planner has a gray area which is called a "copyright" block. The "copyright" block contains the name and address of Select Agenda. Although the sample student planner has a Canadian address, it is indicated that it eventually may have a U.S. address. The country of origin marking, "Printed in Canada", is on the bottom on the back of the last page of the student planner.
Select Agenda inquires about the location of the country of origin marking. It specifically wants to know if the country of origin marking can remain on the last page of the book or must the marking be moved to front page near the "copyright block." According to Select Agenda's letter, they are contemplating manufacturing part of the student planners in the United States and want to know what the marking requirements would be if various operations are performed in the United States.

ISSUE:

Can the country of origin marking be on last page of the student planner or must it be moved to first page?

Does the U.S. address of the school on the front cover of the student planners trigger the requirements of 19 CFR 134.46?

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.

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, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

In addition, section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of the country or locality in which the article was manufactured or produced, appear 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears (HQ 708994, dated April 24, 1978). The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article.

With respect to books, Customs stated in HQ 731663 that:

Because retail purchasers could reasonably expect to find all the pertinent publication, printing and copyright information related to a book on either the front or back of the title page and could therefore, look at the title page if they were confused by information appearing elsewhere, an importer satisfies 19 CFR 134.46 if the country of origin is placed on the front or back of the title page and otherwise complies with the requirements of 19 CFR 134.46

In HQ 734164 (September 23, 1991), we pointed out that other locations may also satisfy the conspicuousness requirement so long as the marking is easy to find. HQ 731663 also upheld Customs' basic position on the close proximity requirement of 19 CFR 134.46, i.e., that if the requirements of 19 CFR 134.46 are triggered by a reference to a place on an article or its container, then the country of origin marking must also appear near to the place reference.

Even if the student planner date book is not a published book, we nevertheless believe that the first page is similar to the title page of a book. Individuals would normally look at the first page to find information about the student planner. Accordingly, the first page would be a conspicuous location for the country of origin marking. However, we are not certain whether individuals would necessarily look at the last page for any information regarding the planner. In this case, we note that there is no information on the last page except the country of origin marking. We also note that a U.S. address may be put on the first page. Accordingly, we find that in order to satisfy the requirements of 19 CFR 134.46 and also satisfy the requirements of being in a conspicuous location, the country of origin marking must be moved to the first page of the student planner.

Although the name and address of a school will be on the front cover of the student planner, we believe that no one will be confused regarding the origin of the student planner by this reference. In several rulings, Customs has indicated that geographic references appearing in connection with an imported article do not necessarily trigger the requirements of 19 CFR 134.46. In HQ 732329 (July 29, 1989), we ruled that an address on a warranty card did not pose a risk of confusion or deception to the ultimate purchaser. In other rulings, Customs determined that certain information provided to enable consumers to contact the company regarding complaints or questions about the product did not trigger the requirements of 19 CFR 134.46. (See HQ 733840, February 1, 1991, where garment hang tags, which included a telephone number of the company and language which invited the consumer to contact the company for informational purposes, did not trigger the requirements of 19 CFR 134.46; HQ 733909, January 15, 1991, where a U.S. address of an environmental group was not misleading.) The basis of these rulings was that while the names and addresses, taken alone, would appear to be the kinds of potentially confusing information addressed by 19 CFR 134.46, their context was such that no confusion as to country of origin was conceivable. In our opinion, the address of a school presents this kind of circumstance. (We assume for the purposes of this ruling that students purchase and therefore they are ultimate purchasers of the student planners.) The planners will be purchased by students, who will understand their school address does not relate to the origin of the planner. Therefore, the U.S. reference in the school address on the front cover of the student planner does not trigger the requirements of 19 CFR 134.46.

With respect to the other questions that Select Agenda asks regarding the marking requirements of the student planners if production operations are shifted to the United States, we do not have sufficient information to answer. Since the student planners will be produced in the United States or Canada, their marking requirements will be governed in part by the requirements for a "good of a NAFTA country" in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994, to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements of these goods are set forth in T.D. 94-1 (interim amendments to various provision of Part 134, Customs Regulations).
19 CFR 181.93(b) of the interim regulations provides that each request for an advance ruling must contain a complete statement of all relevant facts relating to the NAFTA transaction. Such facts include: The names, address, and other identifying information of all interested parties (if known); the name of the port or place at which any good involved in the transaction will be imported or which will otherwise have jurisdiction with respect to the act or activity described in the transaction; and a description of the transaction itself, appropriate in detail to the matter of the requested advance ruling.

The ruling request must contain a complete description of the good or material, a complete description of all materials used in the production of the good or material and a complete description of all processing operations employed in the production of the good or material. In addition, the request should set forth the principal or chief use of the good or material in the United States and commercial, common, or technical designation of the good or material; if the good or material is composed of two or more substances, the relative quantity (both weight and by volume) and value of each substance; any applicable special invoicing requirements (if known); and any other information which may assist in determining the appropriate tariff classification of the good or material. The advance ruling request should also note, whenever germane, the purchase price of the good or material and its approximate selling price in the United States. See 19 CFR 181.93(b)(2)(ii). Since the application of the marking rules depends in part on the classification of the imported article and the finished product the above information is necessary. In addition, in order to furnish a ruling on the correct country of origin marking, we need samples of materials used to make the finished student planner.

Additionally, if production of the student planners are moved to the United States, you should be aware that Customs does not have the authority to approve the marking "Made in U.S.A." The Federal Trade Commission has jurisdiction concerning use of the phrase "Made in U.S.A." Therefore, we suggest that you advise your client to contact the Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W. Washington, D.C. 20508 as to whether it would be permissible to use the phrase "Made in USA" on the student planners.

HOLDING:

The back of the last page of student planner date book is not a conspicuous location for the country of origin marking. The front of the first page of the student planner in the "copyright" block would be a conspicuous location and would satisfy the requirements of 19 CFR 134.46 if a U.S address is present. The school name and address on the front cover of the student planner does not trigger 19 CFR 134.46.

Sincerely,

John Durant, Director

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