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HQ W968059

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May 9, 2006

CLA-2 RR:CTF:TCM 968059 KBR

CATEGORY: MARKING

Area Port Director
Bureau of Customs and Border Protection
10980 Highway 29
Pembina, ND 58271

RE: Internal Advice (IA); Country of Origin Marking on Seed Bags

Dear Area Port Director:

The following is our decision regarding your memorandum dated December 15, 2005, requesting Internal Advice (IA) on the country of origin marking on certain seed bags. A sample of a seed bag was submitted for our consideration.

FACTS:

The subject article is a woven bag intended to contain 50 pounds of grass seed. The bag measures approximately 3’ 3 ½” by 1’ 11/1/2”. The front of the bag is printed with the brand name and description of the seed contents in various print sizes. The largest of the print sizes is approximately 3 5/8 inches high. At the bottom of the front of the bag appears:

CEBECO
INTERNATIONAL SEEDS
Halsey, Oregon USA

The print for the USA address is in bold print, approximately 5/8 inches high.

Along the top left corner of the front of the bag is a sewn on tag of plastic material, approximately 4 inches by 3 inches. Only the right side of the tag is sewn onto the seed bag. The left side, top and bottom of the tag are not attached to the seed bag. This tag lists the percentages of each type of seed and other matter the bag will contain, the germination rate of the seed, the weight of the bag and the date tested. Underneath this information on the tag appears:

HARRELL’S INC, LAKELAND, FL
PRODUCT OF CANADA

The USA address on the tag is in bold print, approximately 1/8 inch high. The statement “PRODUCT OF CANADA” is in bold print, approximately 3/16 inches high. The tag is visible when looking at the front of the seed bag.

ISSUE:

Does the marking on the plastic tag satisfy the country of origin special marking requirements of 19 CFR 134.46?

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, Customs and Border Protection (“CBP”) Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. §1304. Section 134.46, CBP Regulations (19 CFR 134.46), contains more restrictive marking requirements designed to alleviate the possibility of misleading an ultimate purchaser with regard to the country of origin of an imported article. Specifically, 19 CFR 134.46 requires that, in instances where the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of 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. CBP has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. See HQ 559886, dated August 16, 1996. In the instant case, the seed bag has a USA address printed on the front of the bag. This triggers the special marking requirements of 19 CFR 134.46. Further, the plastic tag sewn onto the seed bag has a USA address, which also triggers the special marking requirements of 19 CFR 134.46. The plastic tag also is printed with the country of origin of the seed: “PRODUCT OF CANADA” directly below and in larger size print than the USA address on the plastic tag. We find that this country of origin designation satisfies the requirements of 19 CFR 134.46 only as to the non-origin geographic reference appearing on the plastic tag.

The real question involved here is whether the sewn on tag is sufficient to meet the “close proximity” and “comparable size print” requirements of 19 CFR 134.46 concerning the non-origin geographic reference which is printed on the seed bag. As a general practice, CBP allows sewn on labels to be used to indicate the country of origin of a product. See HQ 734098 (July 5, 1991) (allowing sewn on labels to be used for country of origin marking on a sweater), HQ 563170 (January 27, 2005)(allowing sewn in labels for marking wallets).

In HQ 731035 (February 29, 1988), CBP allowed sewn on labels as a general rule but held that the sewn on label did not meet the close proximity requirement of 19 CFR 134.46 when the sewn on label was in the interior pocket and the non-origin geographical reference is on the exterior. However, the instant seed bag plastic tag is distinguishable from the card case’s sewn on label in HQ 731035. Unlike the sewn in label of that card case, the instant sewn on plastic tag is on the same side as the non-origin geographical reference. When viewing the seed bag the plastic tag is easily viewed with the rest of the printing on the front of the seed bag thereby remaining conspicuous when compared to the non-origin geographical reference. Further, in HQ 733768 (June 18, 1991), CBP found that even though the non-origin geographical reference appeared on a separate surface, a sewn on label satisfied the requirements of 19 CFR 134.46. Therefore, we do not find the instant plastic tag inherently improper for satisfying the same side or surface country of origin marking requirements of 134.46.

However, the size of the print non-origin geographic reference appearing on the front of the seed bag is almost three times the size of the print used on the plastic tag to describe the country of origin. Therefore, this violates the 19 CFR 134.46 requirement that the print of the country of origin be of comparable size to the non-origin geographic reference. See HQ 735372 (March 16, 1995)(requiring the print size of a non-origin geographic reference to be reduced or the reference removed). Hence, the instant plastic tag does not satisfy the 19 CFR 134.46 country of origin marking requirements.

HOLDING:

The two references to USA addresses trigger the special marking requirements of 19 CFR 134.46. As discussed above, because of the difference in print size between the non-origin geographic reference on the front of the seed bag and the country of origin statement on the plastic tag, the sewn on plastic tag does not meet the 19 CFR 134.46 country of origin special marking requirements.

You are to mail this decision to the internal advice applicant no later than 60 days form the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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