HQ 561701 - Request for reconsideration of NY F83854; country of origin marking requirements applicable to laminate cartridges; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 561701

October 2, 2001

MAR-05 RR:CR:SM 561701 KKV

CATEGORY: MARKING

Ms. Sandra Liss Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Request for reconsideration of NY F83854; country of origin marking requirements applicable to laminate cartridges; 19 CFR 134.46

Dear Ms Friedman:

This is in response to your letter dated April 6, 2000, on behalf of Brother International Corporation, which requests reconsideration of New York ruling NY F83854, dated March 30, 2000, which addressed the country of origin and marking requirements applicable to imported laminate cartridges (models LC-M5, LC-D5 and LC-A5). In particular, you seek review of that portion of the decision which addressed the country of origin marking requirements applicable to the imported merchandise. Samples of the marked cartons have been submitted for our examination. We regret the delay in responding to your inquiry.

FACTS:

Brother International Corporation imports three types of laminate film cartridges into the U.S. for use with the Brother Cool Laminator. New York ruling NY F83854, dated March 30, 2000, held that the cartridges, assembled in China from Chinese, Japanese and Taiwanese components, were a product of China and that the special marking requirements of 19 CFR 134.46 were triggered, requiring the country of origin of the articles to appear in close proximity to the non-origin geographic reference printed on the label.

The three sample cartons are printed in the same manner. On the front panel of each carton is printed the product name, graphic, product description and company name. The top of each carton is printed with the same information. The two side panels of each carton display the product name and description as well as the company name. Printed immediately below the company name, along the bottom edge of the carton, is the phrase, “Made in China.” Printed on the back panel of each carton is the product name, description, and information as well as a listing of related products made by the same company. Printed along the bottom right-hand side portion of the carton, in large bold font, is the company name. Immediately to the right of the company name, in letters 1/16” in size and surrounded by a box, are the words “For more information, please call the brother fax-back system at 1-800-521-2846 or visit our website at http//www.brother.com.” Below the text box containing the contact information is printed the company name and U.S. address.

ISSUE:

Whether the proposed marking satisfies 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 (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. 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.” U.S. v. Friedlaender & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR part 134), implements the country of origin marking requirements of 19 U.S.C. 1304. Section 134.46, Customs Regulations (19 CFR 134.46), as revised by Treasury Decision (T.D.) 97-72, dated August 20, 1997, states:

In any case in which the words “United States” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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 language of the revised section 134.46 provides that its special marking requirements are triggered only when Customs determines that the non-origin marking may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. Customs has ruled that in order to satisfy the “close proximity” requirement, the country of origin marking must appear on the same sides(s) or surface(s) on which the name of the locality other than the country of origin appears. See Headquarters Ruling Letter (HRL) 708994, dated April 24, 1978.

In support of your position, you cite to several decisions previously issued by the Customs Service on this subject matter. In HRL 561610, dated January 14, 2000, Customs held that the requirements of 19 CFR 134.46 were not triggered by a U.S. address where it was immediately prefaced by a clear invitiation for customers to contact the company with their questions about the product (i.e., “For any product related comments write to us at: 154 Avenue E, Bayonne, New Jersey 07002”). In HRL 733840, dated February 1, 1991, Customs held that the special requirements of 19 CFR 134.46 were not triggered by three hangtags upon which the address and telephone number of a company which appeared immediately before an invitation for the customer to contact the company for information (i.e., “For futher information please contact;” “For further information concerning this product, please contact;” and “For further information concerning this product or any Woolrich product, please contact”). In HRL 732329, dated July 12, 1989, Customs held that the requirements of 134.46 were not triggered where a U.S. address appeared on a warranty card, located after a recitation of the applicable warranty rights or on the front of a postcard to inform postal authorities where to deliver the card. In HRL 732816, dated November 24, 1989, Customs held that the requirements of 134.46 were not triggered by a U.S. address printed for purposes of offering purchasers a location to pursue guarantee or customer satisfaction assistance, or by the U.S. patent information, both of which were printed on the back side of a display ticket which was apparent to the purchaser only after the article (a pair of gloves) was disassembled by unstapling.

In this instance, however, the U.S. address of the company is not printed directly after an invitation to the customer to contact the firm for more information. Instead, that langugage - which is accompanied by a telephone number and the company website - is visually set off from the rest of the text by a box. Rather, the U.S. address appears somewhat below the contact information, printed immediately below the name of the company, and is unaccompanied by any other words of clarification (e.g., as a point of contact for warranty or customer service concerns). In the absence of any qualification of the U.S. address which would alleviate confusion by the ultimate purchaser, the words, “100 Somerset Corporate Boulevard, Bridgewater, NJ 08807” may mislead or deceive the ultimate purchaser with regard to the actual origin of the imported cartridges. Therefore, we find that the special marking requirements of 19 CFR 134.46 are applicable and the cartons must be marked with the country of origin of the imported cartridges (China) on the same side or panel of the box as the U.S. address, in letters at least the same size as the non-origin reference, and preceded by “Made in,” “Product of” or other words of similar meaning.

HOLDING:

On the basis of the information and samples submitted, we find that the U.S. address on the back side of the label triggers the special marking requirements of 19 CFR 134.46. Accordingly, the cartons must be marked with the country of origin of the imported cartridges (China) on the same side or panel of the box as the U.S. address, in letters at least the same size as the non-origin reference, and preceded by “Made in,” “Product of” or other words of similar meaning.

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

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