HQ 559554 - Country of origin marking requirements for imported printed material distributed in the U.S. free of charge; Article 509; NAFTA Marking Rules; ultimate purchaser; 19 CFR 134.1(d); 19 CFR 134.32(d) - United States International Trade Commision Rulings

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HQ 559554

August 27, 1996

MAR-2-05 RR:TC:SM 559554 AT

CATEGORY: MARKING

Mr. Pierre M. Vincent
Domtar Inc.
395, De Maisonneuve Blvd. West
Montreal (Quebec), Canada H3A1L6

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; 19 CFR 134.1(d); 19 CFR 134.32(d)

Dear Mr. Vincent:

This is in response to your letter dated November 2, 1995, requesting a ruling on the country of origin marking requirements for printed material imported from Canada to be distributed in the U.S. free of charge. We regret the delay in responding.

FACTS:

You state that Domtar Inc. ("Domtar") imports into the U.S. from Canada various printed promotional items (swatch books, calenders, posters, newsletters, brochures, note pads, gift wrap as well as a variety of trade advertising material). According to your submission, all of these printed items will be manufactured in Canada. Also, you state that the promotional items are not intended for sale in the U.S. but are simply given away free of charge to U.S. consumers by U.S. companies at their expense to promote their products.

ISSUE:

What are the country of origin marking requirements for the printed promotional items 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.

Section 134.1(b) of the Customs Regulations (19 CFR 134.1(b) 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" within this part; however, for a good of a NAFTA country, the NAFTA marking rules will determine the country of origin. (Emphasis added).

Section 134.1(g) of the Customs Regulations (19 CFR 134.1(g), 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 printed promotional items are manufactured in Canada, we will assume for purposes of this ruling that the country of origin of the imported promotional items 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 promotional items, it first must be determined who is the ultimate purchaser in the U.S. of the imported articles. Section 134.1(d) of the Customs Regulations (19 CFR 134.1(d), 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, 19 CFR

Since the mentioned printed promotional items are imported into the U.S. from Canada (a NAFTA country, assuming the imported articles are goods of Canada) as promotional giveaways which are not intended to be sold in the U.S., the ultimate purchaser of the imported printed material is the last person who purchases the article in the U.S. in its imported condition and not the recipient who receives the imported article as a promotional giveaway free of charge. Accordingly, the ultimate purchasers of the imported promotional printed items are the U.S. companies who purchase and distribute the items free of charge to U.S. consumers as promotional giveaways.

The last issue which must be determined is whether the imported printed promotional items 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 containers which reach the U.S. companies are marked with the article's origin--Canada--the printed items 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 imported printed promotional items, the special marking requirements of 19 CFR 134.46 would not apply for marking the imported articles, 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 promotional item free of charge, but rather the U.S. companies who purchase and distribute the printed material in the U.S. Under these circumstances, any 134.46-type reference which may appear on the printed items, 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 printed promotional items 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 printed promotional items 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 printed promotional items are the U.S. companies who purchase the promotional items and not the consumers who receive the imported promotional items free of charge. Thus, provided the outermost containers which reach the U.S. companies are marked to indicate "Canada" as the origin of the import printed promotional items, 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 printed items 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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