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HQ 563275





September 7, 2005

MAR-2-05 RR:CR:SM 563275 EAC

CATEGORY: MARKING

Mr. Robert E. Haspray
Senior Trade Advisor
Deringer Logistics Consulting Group
1 Lincoln Boulevard, Suite 225
Rouses Point, NY 12979

RE: 19 U.S.C. §1304; 19 CFR Part 134; scarves; conspicuous

Dear Mr. Haspray:

This is in response to your letter of July 21, 2004, submitted on behalf of V.Fraas, concerning the labeling and marking requirements applicable to certain imported scarves. Sample scarves containing labels were provided with your letter.

FACTS:

We are advised that V. Fraas imports a variety of textile scarves into the United States from Germany and/or China. After entry, the imported scarves are transported to a V. Fraas warehouse in Plattsburgh, New York. The imported scarves contain various labels that may display content, care, country of origin, and company identification or registered number information.

We have been provided with three sample scarves that bear distinctive rectangular labels. The first scarf (“Sample A”) bears a generic paper label which is affixed to the scarf with adhesive and which indicates country of origin, registered number, content, and care information. While at the warehouse in Plattsburgh, the generic paper labels will be removed and replaced with V. Fraas or other proprietary brand retail labels. You inquire as to whether it is acceptable to remove and replace the generic labels in this fashion.

The second scarf (“Sample B”) bears a more stylized fabric label. This label is also attached to the scarf with an adhesive backing and indicates country of origin, registered trademark, company, content, and care information. You inquire as to whether this label would be sufficiently permanent so as to satisfy the applicable marking requirements.

The third scarf (“Sample C”) bears a two-sided fabric label. This label is attached by tack-stitching with thread the top two corners of the label to the scarf. One side of this label contains the words “Sutton/Studio” directly above the words “Exclusively for Bloomingdale’s.” The other side of this label contains country of origin, content, care, and registered number information.

ISSUES:

Whether the labels satisfy the requirements of 19 U.S.C. §1304 and whether the scarves may be relabeled after entry into the United States in the manner set forth above.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930 (19 U.S.C. §1304), provides that, unless excepted, every article of foreign origin imported into the United States 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 United States 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.” United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302 (1940).

Part 134 of the Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Concerning the degree of permanence of country of origin markings, section 134.41(b), Customs Regulations (19 CFR 134.41(b)), provides:

Degree of permanence and visibility.

The degree of permanence should be at least sufficient to
insure that in any reasonably foreseeable circumstance, the marking shall remain on the article (or its container) until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. The ultimate purchaser in the United States must be able to find the marking easily and read it without strain.

Also relevant is section 134.44(b), Customs Regulations (19 CFR 134.44(b)), which provides:

Articles marked with paper sticker labels. If paper sticker or pressure sensitive labels are used, they must be affixed in a conspicuous place and so securely that unless deliberately removed they will remain on the article while it is in storage or on display and until it is delivered to the ultimate purchaser.

U.S. Customs and Border Protection (“CBP”) has consistently held that indicating the country of origin of imported items by means of adhesive labels is acceptable provided the labels are conspicuous, legible, and permanent. See, for example, Headquarters Ruling Letter (“HRL”) 731089 dated February 13, 1989 (marking imported sandals and moccasins with vinyl adhesive-backed labels was acceptable for country of origin marking purposes); and, HRL 732836 dated December 28, 1989 (paper label affixed to a leather dart wallet satisfied country of origin marking requirements). In considering the permanency of a particular label, CBP will weigh factors such as the type of surface upon which the label is attached and whether the label could withstand normal handling and remain on the item until obtained by the ultimate purchaser. For example, in HRL 734988 dated August 23, 1993, CBP stated that an adhesive sticker placed upon the nylon strap of a watch would not adhere as well as a sticker placed elsewhere because of the strap’s textured surface. See also, HRL 731089 (adhesive-backed label that contained country of origin information did not satisfy permanency requirement because the adhesive did not bond to the terry cloth interior of a shoe).

As applied to the specific facts of this case, we find that the paper and fabric adhesive-backed labels attached to Samples A and B are not sufficiently permanent so as to meet the requirements of 19 U.S.C. §1304. In making this determination we note that the backing of the labels does not adhere well to the textured material of the scarves. Therefore, it is our opinion that the paper and fabric adhesive-backed labels would not survive normal distribution and store handling because the labels affixed to Samples A and B are peeling off without being handled extensively. The use of paper labels under these circumstances is not acceptable because the paper tears easily in addition to not adhering well to the subject scarves. Please be advised that the use of the fabric labels may be acceptable if a stronger adhesive backing is used that enables the fabric labels to survive normal distribution and store handling operations. In this regard, we suggest the submission of another sample to the National Import Specialists for their review.

Nonetheless, you additionally inquire as to whether it is acceptable to use and, after importation into the United States, remove and replace the generic adhesive-backed labels. As noted above, it is our opinion that the generic adhesive-backed labels would not survive normal distribution and store handling under any circumstance. However, it is our opinion that V. Fraas may import the scarves and replace the labels in the manner set forth above provided the requirements of section 134.26, Customs Regulations (19 CFR 134.26), are satisfied. Section 134.26(a) provides that if an article subject to country of origin marking is intended to be repacked after its release from CBP custody, or the port director having custody of the article has reason to believe that the article will be repacked after its release, the importer shall certify to the port director that: (1) if the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article...; or (2) that if he does not repack the article he will give notice to subsequent purchasers or repackers of their obligations under section 19 U.S.C. §1304 and Part 134, Customs Regulations.

The procedures set forth at 19 CFR 134.26 apply only to articles that are legally marked at the time of importation. See, for example, HRL 561269 dated February 29, 2000. In HRL 561269, certain unmarked firearm parts were imported into the United States in bulk, commingled with other parts, repackaged into sealed plastic containers and sold at retail in properly marked containers as spare parts. Where the outermost container of the imported gun parts to be repacked in the United States was correctly marked with country of origin information, the certification procedures of 19 CFR 134.26 were to be utilized; whereas, it was stated that the separate procedures of 19 CFR 134.34 were to be utilized when unmarked gun parts were imported in unmarked outer containers.

In consideration of the foregoing, it is our opinion that V. Fraas may replace the generic adhesive labels after entry provided the outermost containers in which the scarves are imported into the United States are marked with the country of origin of the scarves, the new labels attached to the scarves will reach the ultimate purchaser properly marked with country of origin information, and the certification requirements of 19 CFR 134.26 are executed.

With respect to the fabric label sewn to Sample C, CBP considered fabric labels sewn onto neckties and scarves with the words “100% SILK” on the front and the words “MADE IN KOREA” on the back in HRL 559620 dated May 17, 1996. At issue for CBP was a protest challenging the assessment of marking duties and whether the imported items were properly marked with country of origin information for purposes of the marking statute. The decision also referred to the requirements of 19 CFR 141.113(a)(2) and 16 CFR 303.16(b), which provided in 1996, in pertinent part, that the fiber content, registered identification number or manufacturer’s name, and the country where the product was manufactured shall all appear conspicuously on the same side of the label. The issue of whether the requirements of 16 CFR 303.16(b) were satisfied was referred to the Federal Trade Commission (“FTC”) because the matter is under that agency’s jurisdiction. CBP noted that the conspicuous requirement of 19 U.S.C. §1304 did not mandate that the neckties and scarves be marked on the front-side of the fabric label that is sewn to the article and that in this instance, the country of origin could be found by a casual examination of an ultimate purchaser. Therefore, it was determined that marking duties should not be assessed.

At that time, the FTC regulations also stated that the required name or registered identification number could appear on the reverse side of the label if it was conspicuous. However, we note that revised 16 CFR 303.15(b), effective March 16, 1998, clearly provides that the country of origin disclosure must always appear on the front side of the label. Similarly, the wool regulations have the same requirement. Furthermore, we note that the marking statute now excepts silk scarves from country of origin marking, and as such, HRL 559620 now is of less relevance. Accordingly, we are of the opinion that country of origin disclosures must also appear on the front side of such labels in order to satisfy the conspicuous requirement of 19 U.S.C. §1304.

As applied to the instant case, we find that the label attached to Sample C does not satisfy the conspicuous requirement of 19 U.S.C. §1304. Although the tack-stitched label is sufficiently permanent so as to survive normal distribution and store handling, it is our opinion that the country of origin marking is not in a conspicuous location because a consumer may not expect to examine the back of the label to obtain origin information, especially since the FTC requires such information to be on the front of such labels.

HOLDING:

Based upon the information provided, it is our opinion that the paper and fabric adhesive-backed labels attached to Samples A and B would not survive normal distribution and store handling and remain on the scarves until received by the ultimate purchaser in the United States. Therefore, we find that the paper and fabric adhesive-backed labels do not satisfy the requirements of 19 U.S.C. §1304. The label tack-stitched to Sample C with thread is sufficiently permanent so as to survive normal distribution and store handling but the country of origin marking on the label is not in a conspicuous location. Therefore, the Sample C label does not satisfy the requirements of 19 U.S.C. §1304.

We also find that V. Fraas may replace the generic adhesive labels after entry provided the outermost containers in which the scarves are imported into the United States are marked with the country of origin of the scarves, the new labels attached to the scarves will reach the ultimate purchaser properly marked with country of origin information, and the certification requirements of 19 CFR 134.26 are executed.

A copy of this ruling 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 CBP officer handling the transaction.

Sincerely,

Monika R. Brenner, Chief
Valuation and Special Programs Branch


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