HQ 735455 - Country of origin marking of paper bags for fireproofing materials; 19 CFR 134.46; NAFTA - United States International Trade Commision Rulings

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HQ 735455

May 16, 1994

MAR 2-05 CO:R:C:V 735455 LR

CATEGORY:

Mr. James C. Ameno
A.N. Deringer, Inc.
1010 Niagara Street
Buffalo, N.Y. 14213

RE: Country of origin marking of paper bags for fireproofing materials; 19 CFR 134.46; NAFTA

Dear Mr. Ameno:

This is in response to your letter dated December 6, 1993, submitted on behalf of your client, Monokote Fireproofing, requesting a ruling on the country of origin marking of three bags for fireproofing materials. Samples of the three bags were submitted.

FACTS:

The sample bags are large brown paper bags, containers for fireproofing materials. You advised us by telephone that the bags are to be imported with the fireproofing materials inside. You further indicated that both the bags and the contents are made in Canada. The three sample bags are the same; the only difference is where the "MADE in CANADA" markings appear. Each bag displays information about its contents in large lettering. Such information appears on the front, back, top and bottom panels of the bag. Several U.S. references appear on each bag and are described below. Except for one on the bottom of the bag, each refers in some way to the contents of the bag and not the bag itself.

Front Panel:
The U.S. address of Grace Construction Products appears in large lettering (approximately 20 point type) on the bottom right of the front panel.

The words: "Monokote Types MK-6/CBF/ED and Retro-Guard Types RG/RG-1 are covered by U.S. Pat. No. 4,751,024...." appear sideways on the left and right sides of the front panel in lettering approximately 16 point type.

Back Panel:
In connection with information about disposal of the product, reference is made to "U.S. EPA (40 CFR ?261.3)" in lettering of approximately 14 point type.

The words "ACCEPTED BY CITY OF NEW YORK DEPARTMENT OF BUILDINGS" appear in large lettering (approximately 20 point type) in the center of the bag toward the bottom.

The words "Includes a license to practice the injection process claimed in U.S. Pat. No. 4,904,503. A separate license is available from W.R. Grace & Co.-Conn." appear sideways on the left and right sides of the back panel in lettering approximately 16 point type.

Bottom Panel
The words "Freight Shipping Bag Meeting requirements of applicable freight classification Guaranteed by Union Camp Corporation" appear on the left side, followed by "HAZELTON, PA." in lettering of approximately 12 point type.

Country of origin markings appear on each sample as follows:

Sample 1
Two large "MADE IN CANADA" markings appear on the bottom panel (approximately 30 point type).

One "MADE IN CANADA" marking appear on the front panel by means of a sticker (approximately 20-25 point type).

Sample 2
Same as Sample 1 plus an additional "MADE IN CANADA" sticker on center of the back panel. (approximately 35 point type)

Sample 3
Same as Sample 2 plus two "MADE IN CANADA" stickers on the back panel next to the U.S. patent information. (approximately 20-25 point type).

ISSUE:

Whether the sample bags satisfy the 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. 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 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 Red. 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 which are 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).

For purposes of this ruling, we assume that the country of origin of the bags and their contents is Canada and that they are therefore each a good of a NAFTA country. Section 134.22(d), of the interim regulations, provides that a good of a NAFTA country which is a usual container, whether or not disposable and whether or not imported empty or filled, is not required to be marked with its own country of origin. Usual container means the container in which a good will ordinarily reach its ultimate purchaser. The paper bags used to package the fireproofing materials constitute usual containers within the meaning of section 134.22(d). As such, the bags need not be marked to indicate their own country of origin, but that of their contents. See 19 CFR 134.32(d) and 19 CFR 134.24. (In this case, as noted above, both the bags and their contents are made in Canada).

With regard to the conspicuousness and legibility requirements, section 134.41(b) requires that the country of origin marking be such that the ultimate purchaser is able to find the marking easily and read it without strain. Paper sticker labels are an acceptable method of marking provided they are securely affixed so that they will remain on the article (or the container) while it is in storage or on display and until it is delivered to the ultimate purchaser. See 19 CFR 134.44.

The Customs Service has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Thus, in cases where words indicating possible origin other than the actual country of origin appear on the article, Customs requires that the country of origin marking shall appear in close proximity to and in at least comparable size letters to such words, and preceded by "Made in," "Product of," or other words of similar meaning. (See 19 CFR 134.46). The purpose of this regulation is to alleviate the possible confusion that is created by these words. The close proximity requirement is generally satisfied if the origin marking appears on the side or surface as the U.S. reference. In this case, since most of the information on the bags, including the U.S. references, concern the bags contents, so too should the ?134.46 origin markings.

We find that samples 2 and 3 satisfy the requirements of 19 CFR 134.46 since the origin markings appear on the same side of the bag as the U.S. references and in comparable size letters. While one origin marking on the back panel is sufficient (as on sample 2) the additional markings on sample 3 are acceptable. Sample 1 does not satisfy the requirements of 19 CFR 134.46. Although it is possible that any one of the U.S. references on the back panel by itself may not confuse the ultimate purchaser as to origin, in combination, there is a greater potential for confusion. Therefore, we find that a comparable size "Made in Canada" marking must appear on the back panel.

We also find that samples 2 and 3 are marked in a conspicuous, legible and permanent manner. The origin markings are easy to read, easy to find and the stickers are securely affixed.

HOLDING:

The country of origin marking on samples 2 and 3 (but not sample 1) as described above satisfy the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director

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