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HQ 735450


August 30, 1994

MAR-2-05 CO:R:C:S 735450 RC

CATEGORY: MARKING

District Director
P.O. Box 9516
El Paso, Texas 79985

RE: Internal Advice Request; Country of Origin Marking for Vacuum Cleaners; 19 CFR 134.32(d); 19 CFR 134.46; Conspicuous; Container Marking

Dear sir:

This is in response to your memorandum of November 16, 1993, forwarding a request for internal advice from Mr. Contes of The Hoover Company concerning the country of origin marking requirements for appliance packaging. His letter was forwarded to us by the National Import Specialist in New York without samples. Per our request, the importer submitted sample packages on August 11, 1994.

FACTS:

The Hoover Company imports into the U.S. various models of vacuum cleaners, assembled in Mexico of U.S. components. Sample retail packaging for seven models were submitted for our review (approximate box dimensions in parentheses).

(1) the Office Machine (22" x 15" x 6") is marked as follows exclusively on the bottom panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, FINE APPLIANCES ... around the house, around the world, Assembled in Mexico" in lettering of approximately 13.5 points;

(2) the Quik-Broom (24" x 10" x 6") is marked as follows with an adhesive label at the base of the principal display panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." in lettering of approximately 18 points; this box is also marked as follows on the bottom panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, FINE APPLIANCES ... around the house, around the world, ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." in lettering of approximately 13.5 points;

(3) the Tempo 150 (20" x 11" x 10") is marked as follows on the bottom panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, FINE APPLIANCES ... around the house, around the world, ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." in lettering of approximately 27 points; additionally, this model's box is marked on the rear panel, "HOOVER - AMERICA'S #1 VACUUM" in lettering of approximately 27 points;

(4) the Tempo 460 (25" x 13" x 8") is marked as follows exclusively on the bottom panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, FINE APPLIANCES ... around the house, around the world, ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." in lettering of approximately 27 points;

(5) the Portapower II (20" x 10" x 11") is marked as follows exclusively on an end panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." in lettering of approximately 27 points;

(6) the Sprint 200 (22" x 12" x 7") is marked as follows exclusively on an end panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, FINE APPLIANCES ... around the house, around the world, ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." in lettering of approximately 27 points; and

(7) the Hornet (22" x 12" x 7") is marked as follows exclusively on an end panel: "THE HOOVER COMPANY, NORTH CANTON, OH 44720, ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." in lettering of approximately 27 points.

A point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 inch, and all type sizes are multiples of this unit. The retail boxes containing the vacuums weigh between 8 and 15 pounds.

ISSUES:

1) Whether the country of origin marking appears in a conspicuous location.

2) Whether the requirements of 19 CFR 134.46 are satisfied.

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 will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin. Part 134, Customs Regulations (19 CFR part 134) implements the regulations of 19 U.S.C. 1304.

The "ultimate purchaser" is generally defined, in 19 CFR 134.1(d), as the last person in the United States who will receive the article in the form in which it was imported. According to 19 CFR 134.41(b), a marking should be at least sufficiently permanent to insure that, in any reasonably foreseeable circumstance, the marking shall remain on the article or its container until it reaches the ultimate purchaser. The ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.

On December 8, 1993, as part of the North American Free Trade Agreement ("NAFTA") Implementation Act, Congress amended the country of origin marking provisions with respect to goods produced in the signatory countries, that is, Canada, Mexico, and the United States. Pub. L. No. 103-182. The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement, as implemented by section 207 of the 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. 94-1 (58 Fed. Reg. 69460, December 30, 1993) and as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 6946), February 3, 1994). 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 for these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).

Section 134.1(b) of the interim regulations, defines "country of origin" as:
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin"; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin (emphasis added).

Section 134.1(j) of the interim regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the interim regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico, or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the interim regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French, or Spanish."

Part 102 of the interim regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the interim regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Section 102.11(a) of the interim regulations states that "[t]he country of origin of a good is the country in which:

(1) The good is wholly obtained or produced; (2) The good is produced exclusively from domestic materials; or (3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20 and satisfies any other applicable requirements of that section, and all other requirements of these rules are satisfied."

In this case, the applicable rule is section 102.11(a)(3) of the interim regulations. "Foreign Materials" is defined in section 102.1(e) of the interim regulations as "a material whose country of origin as determined under these rules is not the same country as the country in which the good is produced." In order to determine whether Mexico is the country of origin, we must look at those materials whose country of origin is other than Mexico.

As the vacuums are classified under subheading 8509.10, HTSUS, the change in tariff classification must be made in accordance with section 102.20(p), Section XVI: Chapters 84 through 85, 8509.10 through 8509.80 of the interim regulations, which states that:

A change to subheading 8509.10 through 8509.80 from any other subheading, including another subheading within that group.

Section 102.20(p) allows a change to this classification from any other subheading, which includes the "parts" subheading 8509.90. Therefore, we find the country of origin to be Mexico under 102.11.

The Hoover Company submissions state that the vacuums are assembled in Mexico of U.S. parts. For purposes of this ruling, we are assuming that the assembled vacuums are eligible for the partial duty exemption in subheading 9802.00.80. Section 10.22, Customs Regulations (19 CFR 10.22), provides as follows:

Assembled articles entitled to the exemption are considered products of the country of assembly for the purposes of the country of origin marking requirements of section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304). If an imported assembled article is made entirely of American-made materials, the U.S. origin of the materials may be disclosed by using a legend such as "Assembled in from material of U.S. origin," or a similar phrase.

Therefore, if the vacuums are made entirely of U.S.-origin components, the proposed marking "ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." is acceptable.

With respect to whether the marking is in a conspicuous location, the facts in the instant case are on point with the facts we ruled upon in HQ 734648 (July 14, 1992). As we stated in that case, Customs generally does not consider a marking appearing on the bottom of a container to be in a conspicuous location. Merely marking the bottom of the box in the instant case would be insufficient. With respect to the sample boxes marked also on side or end panels, the ultimate purchaser can readily ascertain the country of origin. The markings appearing on the side panels are permanent, legible, and indelible. Therefore, the requirements of section 134.41 are satisfied by the side panel markings.

Customs has ruled upon these issues most recently in HQ 735466, dated August 4, 1994. In that case, various small appliances were imported into the U.S. for domestic sale in retail boxes with dimensions akin to shoe boxes or, at most, twice that size. Although the retail boxes were clearly marked "Made in Mexico" on the bottom panels, they were also marked on two side panels where references to U.S. locales (domestic addresses) appeared. Customs considered the relatively small size of the given appliance boxes, their ease in handling, and the additional side panel markings. Consequently, Customs allowed the bottom panel markings. In the instant case, the retail boxes, significantly larger and heavier than in HQ 735466, are more difficult for the ultimate purchaser to handle.

Hoover's decision to include a domestic address or the phrase "HOOVER - AMERICA'S #1 VACUUM CLEANER" on boxes invokes the provisions of 19 CFR 134.46. Under section 134.46, in any case in which the words "U.S." or "American," or the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the U.S., or the name of any foreign country or locality other than 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.

Applying the requirements of section 134.46, Customs has in numerous rulings determined that the "close proximity" requirement means "same side or surface" where the name of the locality other than the country of origin appears. See HQ 708994 (April 24, 1978). This interpretation prevents the possibility of misleading or deceiving the ultimate purchaser for marking purposes. The panel indicating "AMERICA'S #1 VACUUM" is not marked to indicate the country of origin of the vacuums. As to the disclosure of the domestic address, likewise, 19 CFR 134.46 requires that the country of origin marking appear on the same side or panel as that reference.

HOLDING:

Assuming that the vacuums are eligible for subheading 9802.00.80, HTSUS, treatment, the proposed marking "ASSEMBLED IN MEXICO FROM PARTS MADE IN U.S.A." is acceptable if the articles are made entirely of U.S. components. The sample retail boxes marked only on the bottom panel do not satisfy the conspicuous location requirement set forth in 19 U.S.C. 1304. The reference to "AMERICA'S #1 VACUUM" and the U.S. address trigger the requirements of 19 CFR 134.46. The country of origin marking must appear in close proximity (the same side or panel) and in comparable size lettering to the domestic references. This standard is not met for the box indicating "AMERICA'S #1 VACUUM". Only the sample retail boxes marked on an end or side other than the bottom or in addition to the bottom marking satisfy the country of origin marking requirements as set forth in 19 U.S.C. 1304 for a conspicuous location.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decisions available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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