HQ 735614 - 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 735614

January 25, 1995

Mar-2-05 CO:R:C:S 735614 AT

CATEGORY: MARKING

Mr. Dan McLean
Canadian Direct
920 Mercer Street
Windsor, Ontario N9A702

RE: 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 Mr. Mclean:

This is in response to your letter dated June 22, 1994, requesting a ruling on the country of origin marking requirements for certain printed materials imported from Canada to be distributed in the U.S. free of charge. We regret the delay in responding.

FACTS:

You state that Canadian Direct intends to import into the U.S. from Canada brochures which are printed in Canada. The brochures are purchased by Financial Marketing Services, Detroit, Michigan. The printed brochures are imported in bulk containers which are delivered to the U.S. Postal System to be distributed through the mail to U.S. consumers free of charge.

ISSUE:

What are the country of origin marking requirements for brochures imported into 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 brochures are printed in Canada, we will assume for purposes of this ruling that the country of origin of the imported brochures 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 brochures, it first must be determined who is 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 not the recipient but the purchaser of the gift. See, Section 134.1(d)(4) of the interim regulations.

Since the mentioned printed material is imported into the U.S. from Canada (a NAFTA country, assuming the imported brochures are goods 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 purchaser of the imported brochures is Financial Marketing Services, the U.S. company who purchases the brochures which are to be distributed in the U.S. free of charge.

The last issue which must be determined is whether the imported brochures 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 brochures themselves are 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 section 134.46-type references, may appear on the brochures, the special marking requirements of 19 CFR 134.46 would not apply for marking the imported brochures, if they are excepted from marking pursuant to 19 CFR 134.32(d).

In this case, the ultimate purchaser of the printed material is not the consumer who receives the brochure through the mail, but rather is Financial Marketing Services, the U.S. company who purchases the brochures. Under these circumstances, any U.S. reference which may appear on the brochures, would not mislead or deceive the ultimate purchaser 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 type references appear on the imported brochures which are to be distributed free of charge in the manner described above, provided the outermost containers 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 brochures are goods of Canada (a NAFTA country), and are to be imported into the U.S. in the manner described above, the ultimate purchaser of the imported brochures is Financial Marketing Services, the U.S. company who purchases the brochures and not the consumer who receives the imported brochure through the mail. Thus, provided the outermost containers are marked to indicate "Canada" as the origin of the import brochures pursuant to a 19 CFR 134.32(d) marking exception, the imported printed material itself is excepted from country of origin marking, and the special marking requirements of 19 CFR 134.46 would not be invoked if 134.46-type references appear on the brochures themselves.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is 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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