HQ 558018 - Country of origin marking of imported videos; advertising; distributed free of charge; Article 509; NAFTA Marking Rules; ultimate purchaser; section 134.1(d), interim regulations; 19 CFR 134.32(d) - United States International Trade Commision Rulings

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HQ 558018

November 15, 1994

MAR-2-05 CO:R:C:S 558018 MLR

CATEGORY: MARKING

Mr. Alex Romero, Jr.
A.F. Romero & Co., Inc.
P.O. Box 989
Calexico, CA 92231

RE: Country of origin marking of imported videos; advertising; distributed free of charge; Article 509; NAFTA Marking Rules; ultimate purchaser; section 134.1(d), interim regulations; 19 CFR 134.32(d)

Dear Mr. Romero:

This is in reference to your letter of July 19, 1994, requesting a ruling on behalf of Central Video S.A., regarding the country of origin marking requirements of certain videos distributed free of charge.

FACTS:

Central Video is a video duplicating facility in Mexicali B.Calif, Mexico. Central Video duplicates videos and either bulk mails them to the U.S. postal system or to U.S. companies, where they are distributed to U.S. consumers free of charge.

The videos are used by companies as advertising to demonstrate a particular good or service to a prospective customer, or as training material for their clients who have purchased their goods or services; by charities who solicit donations; or by magazine companies who use the videos as bonuses for new subscribers of their magazine. In all scenarios, the videos will be distributed free of charge and the recipient has no obligation to purchase any item.

ISSUE:

What are the country of origin marking requirements for imported videos distributed in the U.S. free of charge?

LAW AND ANALYSIS:

The marking statute, section 304, 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304.

The country of origin marking for a "good of a NAFTA country" are also determined 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), the interim amendments to the Customs Regulations, published as T.D. 94-4, 59 Fed. Reg. 109 (January 3, 1994) with corrections published at 59 Fed. Reg. 5082 (February 3, 1994), and T.D. 94-1 published at 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 provisions of Part 134, Customs Regulations).

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 U.S. as determined under the NAFTA Marking Rules. Since the videos are duplicated in Mexico, we will assume for purposes of this ruling that the country of origin of the imported articles is Mexico. Thus, the NAFTA marking rules must be applied in determining the appropriate marking requirements of the imported articles.

In determining the country of origin marking for the imported videos, the first inquiry concerns the identity of the ultimate purchaser in the U.S. of the imported articles. Section 134.1(d) of the interim regulations, provides that the ultimate purchaser of a good of a NAFTA country is the last person in the U.S. who purchases the good 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. If the imported article is distributed as a gift, the recipient is the ultimate purchaser. However, if a NAFTA article is imported and distributed as a gift, the ultimate purchaser is the purchaser of the gift rather than the recipient. See Section 134.1(d)(4) of the interim regulations.

Since the videos at issue are imported into the U.S. from Mexico, a NAFTA country (assuming the imported article is a good of Mexico) as gifts or giveaways which are not intended to be sold in the U.S., the ultimate purchaser of the imported article is the last person who purchases the article in the U.S. in its imported condition and not the consumer who receives the imported article as a gift or giveaway. Accordingly, the ultimate purchasers of the imported videos are the U.S. companies which pay for the duplication of the videos which are to be distributed in the U.S. free of charge.

The last issue to be determined is whether the imported videos are excepted from country of origin marking. An article is excepted from marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, provided the outermost container is marked with the article's origin, the videos themselves will be excepted from country of origin marking.

HOLDING:

On the basis of the information submitted, assuming the imported videos are goods of Mexico, a NAFTA country, and are to be imported into the U.S. in the manner described above, the ultimate purchasers of the imported videos are the companies which pay for the duplication of the videos and not those who receive the imported videos free of charge through the mail or from the company itself. Thus, provided the outermost containers are marked to indicate "Mexico" as the origin of the imported videos, pursuant to a 19 CFR 134.32(d) marking exception, the imported videos themselves are excepted from country of origin marking.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director

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