MAR-2-05 CO:R:C:S 558647 MLR
Mr. Sheldon Rosenberg
Arrow/Klein-Berger
P.O. Box 810489
Dallas, TX 75381
RE: Country of origin marking of barley; Article 509; NAFTA
Marking Rules; disjunctive; "and/or"
Dear Mr. Rosenberg:
This is in reference to your letter of July 25, 1994,
requesting a ruling regarding the country of origin marking
requirements of barley. A sample of barley with the brand name
"Jack Rabbit" in a polyethylene bag is submitted with your
request.
FACTS:
Arrow/Klein-Berger ("Arrow") packages dry beans, peas,
lentils, and barley in the U.S. Currently, all of the barley
that Arrow packages comes from Minnesota. However, Arrow plans
to package Canadian-origin barley, but use U.S.-origin barley
when the Canadian barley is not available. Arrow wishes to mark
the polyethylene bag "Product of U.S.A. and/or Canada." Arrow
claims that it is too difficult to maintain two sets of
polyethylene bags for each origin of barley since Arrow packages
25 different brands of barley, some in two different sizes.
ISSUE:
Does the proposed marking "Product of U.S.A. and/or Canada"
on the retail packages of barley satisfy the country of origin
marking requirements?
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 imported into the U.S. shall be marked
in a conspicuous place as legibly, indelibly, and permanently as
the nature of the article (or 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." United States v.
Friedlaender & Co. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and the exceptions of
19 U.S.C. 1304. Section 134.25, Customs Regulations (19 CFR
134.25), requires that containers of repackaged J-List articles
or articles incapable of being marked must be marked to indicate
the country of origin of the contents by either the importer who
repackages the articles or the purchaser or transferee of such
articles who does the repacking, and that the importer must
certify to the district director on entry that the repacked
containers will be marked or that he will notify the purchaser or
transferee of such marking requirements.
The country of origin marking for a "good of a NAFTA
country" is determined in accordance with Annex 311 of the North
American Free Trade Agreement ("NAFTA"), as implemented by
section 207 of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057 (December 8,
1993), the interim amendments to the Customs Regulations,
published as T.D. 94-4, 59 Fed. Reg. 109 (January 3, 1994) with
corrections published at 59 Fed. Reg. 5082 (February 3, 1994),
and T.D. 94-1 published at 59 Fed. Reg. 69460 (December 30,
1993). These interim amendments took effect on January 1, 1994,
to coincide with the effective date of the NAFTA.
The marking rules used for determining whether a good is a
good of a NAFTA country are contained in T.D. 94-4 (adding a new
Part 102, Customs Regulations). The marking requirements of
these goods are set forth in T.D. 94-1 (interim amendments to
various provisions of Part 134, Customs Regulations).
Section 102.12, Customs Regulations (19 CFR 102.12) provides
that:
[w]hen fungible goods of different countries of origin
are commingled the country of origin of the goods:
(a) is the countries of origin of those commingled
goods; or
(b) If the good is fungible, has been commingled,
and direct physical identification of the origin
of the commingled good is not practical, the
country or countries of origin may be determined
on the basis of an inventory management method
provided under the Appendix to part 181 of the
Customs Regulations.
Section 102.1(f), Customs Regulations {19 CFR 102.1(f)},
defines fungible goods or fungible materials as "goods or
materials that are interchangeable for commercial purposes and
whose properties are essentially identical." "Commingled" is
defined as "physically combined or mixed." 19 CFR 102.1.
Consequently, if Canadian barley is commingled and packaged with
U.S. barley, the marking "Product of U.S.A. and Canada" on the
polyethylene bag will be acceptable.
However, in regard to the use of "Product of U.S.A. and/or
Canada", it is generally Customs policy not to accept an article
marked in the disjunctive since this does not indicate the actual
country of origin as required by 19 U.S.C. 1304.
You refer to Headquarters Ruling Letter (HRL) 734165 dated
December 2, 1991, where U.S.- and foreign-made LEGO bricks and
shapes were commingled together in containers and then, by a
random process, packaged into retail packages. The phrase "Made
in Denmark, Switzerland, and U.S.A." was approved since it was
highly probable that a LEGO set would contain some pieces from
all three countries, and, therefore, the marking on the container
would properly inform the ultimate purchaser of the countries of
origin in the LEGO set.
The LEGO case is not applicable in this situation where the
retail bags will only contain either Canadian barley or U.S.
barley depending on the supply of the Canadian barley. Rather,
we find C.S.D. 89-111 to be applicable where effervescent
enzymatic cleaner tablets from either West Germany or the U.S.
were packaged into retail containers. While Customs acknowledged
that the seller could avoid expense by using the disjunctive
marking, "Tablets Made in West Germany or the United States",
Customs held that fully accurate marking would not amount to an
economic prohibition, and, therefore, required the package to be
marked with only the actual country of origin. Otherwise, the
disjunctive marking would do no more than indicate the
possibility that the tablets may be of foreign origin. It was
noted that since only one foreign source was involved, West
Germany, and the packages would contain either tablets from the
U.S. or West Germany, only one label was necessary to satisfy the
country of origin marking requirements. When the tablets were of
U.S. origin, no country of origin marking was necessary;
therefore, either separate boxes could be maintained, one
disclosing the presence of West German tablets, the other with no
country of origin necessary, or alternatively, adhesive labels
disclosing the West Germany tablets could be affixed as needed.
Accordingly, if either Canadian or U.S. barley is packaged
into polyethylene bags, the bags may not be labeled "Product of
U.S.A. and/or Canada." However, as noted in C.S.D. 89-111, the
bags containing U.S. barley do not require any country of origin
marking, only the bags containing Canadian barley. Therefore,
either separate bags with the marking "Product of Canada" will be
required when Canadian barley is used, or a label may be affixed
as needed.
HOLDING:
On the basis of the information submitted, if Canadian and
U.S. barley are commingled and packaged in polyethylene bags, the
marking "Product of Canada and U.S.A." will be acceptable.
However, if either Canadian or U.S. barley is packaged into
polyethylene bags, the bags may not be labeled "Product of U.S.A.
and/or Canada", but must be labeled "Product of Canada" if
Canadian barley is used.
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, Director
Commercial Rulings Division