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NY K86690

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June 16, 2004

MAR-2 RR:NC:SP:234 K86690

CATEGORY: MARKING

Ms. Karen E. Keeling
Evans and Wood & Co., Inc.
612 E. Dallas Rd., Suite 200
Grapevine, TX 76051

RE: THE COUNTRY OF ORIGIN MARKING OF VARIOUS NON-PROFIT DIRECT MAIL PREMIUM PACKETS FROM CHINA.

Dear Ms. Keeling:

This is in response to your letter dated May 24, 2004, submitted on behalf of Values by Design (“VBD”), dba Mardel (Oklahoma City, OK), requesting a ruling on whether certain “direct mail premium packets” imported from China are required to be individually marked with their country of origin. Five sample packets were submitted with your letter for review, and are being returned to you as requested.

Each of the sample packets (“mailers”) is a small paperboard box or paper envelope, printed with U.S. postage indicia, containing printed solicitation literature, a return envelope, and a premium (small gift item such as a pendant or a pin). An individual’s name with corresponding U.S. mailing address appears through a window on the front of the packet.

You explain that VBD’s clients, either non-profit organizations or their fundraising agencies, provide VBD with the specifications for the premium packets. VBD then forwards the specifications, along with purchase orders, to Hong Kong Connections (“HKC”), VBD’s related vendor in Hong Kong. HKC then arranges for the actual production/assembly of the packets, which is done in China by various vendors there. Once the orders are complete, they are shipped to VBD in Oklahoma City. VBD then ships the packets (in the same cartons in which they were imported) to their clients. Finally, the clients (i.e., nonprofits or their agencies) mail the packets to the individual addressees for the purpose of soliciting donations.

You state that the shipping cartons in which the packets are imported, and in which they are subsequently forwarded to the nonprofits or fundraising agencies, will be marked with the country of origin. You believe that the nonprofits/agencies are the ultimate purchasers, and that they will be adequately informed of the country of origin by virtue of the marking on the cartons they receive. You therefore suggest that the individual packets (mailers) or their contents need not be individually marked with the country of origin. You cite three rulings, HQ 560327, HQ 735516 and NY J84586, which you believe support your position.

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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

The ultimate purchaser is defined in section 134.1(d), Customs Regulations (19 CFR 134.1(d)) as “generally the last person in the U.S. who will receive the article in the form in which it was imported.” If the imported article is distributed as a gift, section 134.1(d)(4), Customs Regulations (19 CFR 134.1(d)(4)), provides that the recipient is the ultimate purchaser (unless the good is of a NAFTA country, in which case the purchaser of the gift is the ultimate purchaser).

The rulings you cited dealt with the country of origin marking requirements for imported “mailers,” similar to those now before us, intended to be distributed free of charge to addressees in the United States. However, HQ 560327 and HQ 735516 cannot be used as precedent for the current case because they involved goods of a NAFTA country. The present goods, which are products of China (not a NAFTA country) are not subject to the NAFTA marking rules, which differ from the rules applied to non-NAFTA goods, as mentioned in the above-cited regulation. NY J84586, while not involving NAFTA goods, is not applicable as precedent either, since, in that case, the mailers were not distributed in their imported form; the importer in that case placed additional items in the packets and sealed them before they were mailed.

The current scenario more closely resembles the one described in HQ 732659, dated January 26, 1990. (Although HQ 732659 involved mailers imported from Canada, it was issued prior to the onset of NAFTA, and its analysis is based on non-NAFTA marking rules, which are still valid today for non-NAFTA merchandise.) HQ 732659 dealt with printed advertisements in pre-addressed, franked envelopes, imported by a company or organization doing the advertising. The shipping cartons in which the mailers were imported were marked to indicate the country of origin, but the individual mailers were not. The ruling held that this was not acceptable, since, based on 19 CFR 134.1(d)(4), the recipient of the mailer (i.e., the individual addressee), not the importer/advertiser, was the “ultimate purchaser,” and had to be informed of the country of origin. The ruling therefore concluded that the individual mailers were required to be marked.

Based on HQ 732659 and the reasoning therein, we conclude that the current premium packets are required to be individually marked with their country of origin. The marking must be in a place that would be visible to the ultimate purchaser (recipient), either on the envelope or on the inserted material. The marking must be easily found and readable without strain as required by 19 CFR 134.41.

However, as noted in HQ 732659, the U.S. mailing addresses appearing on the packets do not trigger the special marking requirements of 19 CFR 134.46. The latter normally requires that when a U.S. address appears on an imported article, the country of origin must appear in close proximity, legibly, permanently and in comparable size. However, Customs has taken the position that an address on an envelope does not connote the country of origin of an article, and would not mislead an ultimate purchaser. Placement of the country of origin marking immediately adjacent to the U.S. mailing address on the envelope is not recommended in this case, since such marking could cause confusion for the U.S. Postal Service, or interfere with their function of efficiently delivering the U.S. mail.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Carl Abramowitz at 646-733-3037.

Sincerely,

Robert B. Swierupski
Director,

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