HQ 735427 - Internal Advice Request No. 79/73; country of origin marking requirements for imported printed material distributed in the U.S. free of charge; Article 509; NAFTA Marking Rules; ultimate purchaser; section 134.1(d) of the interim regulations; 19 CFR 134.32(d) - United States International Trade Commision Rulings

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HQ 735427

October 25, 1994

Mar-2-05 CO:R:C:S 735427 AT

CATEGORY: MARKING

District Director of Customs
111 W. Huron Street
Buffalo, New York 14202-2378

RE: Internal Advice Request No. 79/73; country of origin marking requirements for imported printed material distributed in the U.S. free of charge; Article 509; NAFTA Marking Rules; ultimate purchaser; section 134.1(d) of the interim regulations; 19 CFR 134.32(d)

Dear Sir:

This is in response to your memorandum dated October 27, 1993, forwarding the September 3, 1993, internal advice request of F.W. Meyers & Co., Inc. ("F.W. Meyers") on behalf of Webcom Limited ("Webcom") concerning the country of origin marking requirements for printed material imported from Canada to be distributed in the U.S. free of charge. A photocopy of a sample university catalog was submitted with the internal advice request. We regret the delay in responding.

FACTS:

Webcom imports university catalogs which are printed in Canada into the U.S. Upon importation into the U.S., the catalogs are distributed either by the U.S. Postal Service or by the respective university itself. Webcom states that the imported catalogs are never sold in the U.S. but are given away free of charge by the university. The submitted photocopy depicts the front cover of a sample catalog. The university name "University of Scranton" and the address "Scranton, PA 18510- 4632" is printed in the top left corner. A postage stamp appears directly across on the top right corner. The words "Scranton, PA" are printed on the postage stamp.

ISSUE:

What are the country of origin marking requirements for imported printed catalogs distributed in the U.S. in the manner described above?

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 (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its 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.

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 ("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 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 catalogs are printed in Canada, we will assume for purposes of this ruling that the country of origin of the imported articles is Canada. 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 requirements for the imported catalogs, 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 mentioned catalogs are imported into the U.S. from Canada, a NAFTA country (assuming the imported article is a good of Canada) 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 catalogs are the U.S. universities which pay for the printing of the catalogs which are to be distributed in the U.S. free of charge.

The last issue which must be determined is whether the imported catalogs are excepted from country of origin marking.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (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 printed material itself is excepted from country of origin marking.

Section 134.46, Customs Regulations (19 CFR 134.46), generally requires that when a name of any U.S. city or locality or the name of any foreign country other than the country 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 country of the imported goods.

Although a section 134.46-type reference, "Scranton, PA", appears on the front cover of the university catalogs, the special marking requirements of 19 CFR 134.46 do not apply for marking the imported catalogs, if they are excepted from marking pursuant to 19 CFR 134.32(d).

In this case, the ultimate purchasers of the catalogs are not those who receive the articles free of charge either through the mail or at the university, but rather are the U.S. universities which pay for the printing of the catalogs. Under these circumstances, the U.S. reference "Scranton, PA", which appears on the front cover of the catalogs, would not mislead or deceive the ultimate purchasers as to the article's actual origin given the fact that the outermost containers will be marked with the article's actual country of origin. Accordingly, the marking requirements under 19 CFR 134.46 will not be invoked when such references appear on the imported printed material which is to be distributed free of charge in the manner described above, provided the outermost containers which reach the ultimate purchasers in the U.S. are marked with the article's actual country of origin, "Canada", pursuant to a 19 CFR 134.32(d) marking exception.

HOLDING:

Assuming that the imported university catalogs are goods of Canada, a NAFTA country, and are to be imported into the U.S. in the manner described above, the ultimate purchasers of the imported articles are the U.S. universities which pay for the printing of the catalogs and not those who receive the imported articles free of charge through either the mail or at the university itself. Thus, provided the outermost containers are marked to indicate "Canada" as the origin of the imported catalogs pursuant to a 19 CAR 134.32(d) marking exception, the imported catalogs themselves are excepted from country of origin marking, and the special marking requirements of 19 CAR 134.46 are not invoked by the U.S. reference "Scranton, PA" which appears on the front cover of the catalogs.

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 decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, LEXIS, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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