MAR-2-05 CO:R:C:V 734290 RSD
Arthur T. Downey, Esq.
Johnson & Gibbs
1301 K Street, N.W.
Washington, D.C. 20005-3307
RE: Country of origin marking requirements for dog bones,
crunchies, cuttlebones, pet supplies, repacking, incapable of
being marked, bulk items; 19 CFR 134.25, 19 CFR 134.32(a)
Dear Mr. Downey:
This is in response to your letter dated August 7, 1991, on
behalf of your client, Fritz Chemical Co. (Fritz), requesting a
ruling on the country of origin marking requirements for rawhide
dog bones, crunchies for dogs, and cuttlebones for birds.
Additional letter dated November 21, 1991, and December 6, 1991,
were received. Samples of these articles were received for our
consideration.
FACTS:
Fritz imports two types of chewable articles for dogs, both
of which are indigestible: (1) articles made of rawhide that are
fashioned into "bones" of various shapes and sizes; and 2)
"crunchies" made of a grounded mixture of rawhide scraps and
tapioca. The rawhide bones come in approximately ten different
sizes and shapes. The crunchies come in more than thirty sizes
and shapes. Fritz also imports pieces of the bones of
cuttlefish, which are sold for use in bird cages. Birds polish
their beaks against the bone, and the cuttlebones provide a
dietary supplement.
The rawhide bones are cut from rawhide and shaped and coated
to become chewable. The "mini bone" and the "small bone" have a
straight center section of rolled rawhide and a knot at each end.
The "mini bone" is approximately 2-3 inches long, and the "small
bone" is approximately 3-4 inches long. The crunchies are
created in a multi-step process: 1) rawhide scraps are ground
into fine pieces in a grinder-type machine; 2) the ground pieces
are mixed with tapioca; 3) the mixture is extruded by machine
into pieces 10-15 feet long; 4) the pieces are oven dried; and 5)
then cut by machine into differing length, shapes and
thicknesses. The "cuttlebones" are fragments of bone from a
cuttle fish.
Fritz claims that the rawhide bones, crunchies and
cuttlebones are incapable of being marked and proposes instead to
indicate the country of origin on the bulk packages in which they
are imported. The bulk packages would range from approximately
1.5 to 2.5 pounds each. The number of articles in each package
would vary depending on the size of the articles. Fritz sells
directly to distributors. Distributors and retailers will also
buy from Fritz's wholesale outlets. The ultimate purchaser may
occasionally purchase these products in the original bulk
packages, which are marked with the country of origin.
Distributors might repackage the articles into smaller lots, but
usually will not. More than likely, retailers would remove the
articles from the bulk package and place the articles in bins so
that their customers can obtain any amount they want. A pet
store owner may also place the cuttlebones in bird cages in the
shop and place the rest in bins.
ISSUE:
What is the country of origin marking requirements for the
pet rawhide bones, crunchies and cuttlebones that are imported in
bulk packages and are likely to be removed from package and sold
in bins?
Are the imported articles incapable of being individually
marked?
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 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., 27 C.C.P.A. 297 at 302 (1940). C.A.D. 104
(1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. 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. 19
CFR 134.32(a) provides an exception to marking an article, if
that article is incapable of being marked.
It is first necessary to determine whether the articles in
question are incapable of being marked. You claim that the
crunchies cannot be marked because any marking technique would be
potentially harmful to the animal or make the product
unmarketable. The porous, rough, uneven, texture of the
crunchies produces a surface that is not suitable for stick-on
labels, inks or dyes. Stick-on labels would normally not adhere
to the dog bones. If a particularly strong glue was used, it is
possible that a label might stick, but the residue of the glue
would remain after the sticker is removed, and it could be
potentially harmful to the animal. Inks and dyes would disburse
into the porous surface making any marking illegible, and could
also be potentially harmful. Tagging each individual crunchie
would require that a hole be drilled in each one. Because of the
crunchie's brittleness, the action of drilling a hole for tagging
purposes would result in a substantial amount of breakage.
The same problems are present with marking the individual rawhide
dog bones with their country of origin. The surface is very
rough, and it is doubtful that a stick-on label would stay on the
product unless a particularly strong glue, which could be harmful
to the animal, is applied. Ink or dyes could also be potentially
harmful. For a hangtag to stay on the smaller sized rawhide
bones a hole would have to be drilled in each of the bones.
Similarly, the cuttlebones have a porous and textured
surface which is not suitable for stick-on labels because they
would fall off. Any glue strong enough to hold a sticker would
leave a potentially harmful residue, and customers would find
removing the sticker inconvenient. The bones are also very
fragile and any labeling process requiring pressure (e.g.
stamping) could result in a substantial amount of breakage.
Attempting to make holes for tags would result in substantial
breakage because the cuttlebones are very brittle. In addition,
using inks or dyes could be potentially harmful to the birds who
ingest small amount of the cuttlebone's calcium.
Based on the above representations, we find that the
individual crunchies, rawhide dog bones, and cuttlebones are
incapable of being marked and accordingly under 19 CFR 134.32(a),
they are excepted from country of origin marking. However, under
19 CFR 134.22 when an article is excepted from the marking
requirements, the outermost container or holder in which the
article ordinarily reaches the ultimate purchaser shall marked to
indicate the country origin of the article. Although the
articles will be imported in properly marked containers, in most
cases they will be taken out of these containers and in some
cases, repacked prior to reaching the ultimate purchaser. As
such, the certification requirements set forth in 19 CFR 134.25
will apply where by the importer shall certify to the district
director that (1) the new containers, unless excepted, shall be
marked in a conspicuous place as legibly, indelibly, and
permanently as the nature of the container(s) will permit, in
such manner as to indicate the country of origin of the
article(s) to the ultimate purchaser(s) in accordance with the
requirements of 19 U.S.C. 1304 and 19 CFR Part 134; or that if
the article(s) is(are) intended to be sold or transferred to a
subsequent purchaser or repacker, the purchaser or transferee,
will be notified in writing at the time of sale or transfer, of
the marking requirements. The importer must conform to these
requirements. It should be noted, however that Customs has
determined that open grocery bins or displays of bulk products
are not considered containers for purposes of 19 CFR 134.25. See
733798, April 11, 1991. Accordingly, if they are sold in bins to
the ultimate purchaser, there is no requirement that the bins be
marked to indicate the country of origin the crunchies, rawhide
dog bones, or the cuttlebones.
HOLDING:
The individual doggie bones, crunchies, and cuttlebones are
incapable of being marked to indicate their country of origin and
therefore are excepted from individual country of origin marking
under 19 CFR 134.32(a); only their containers are required to be
marked. Because some of the imported articles will be repacked
after importation the certification requirements of 19 CFR
134.25 must be followed.
Sincerely,
John Durant, Director
Commercial Rulings Division