MAR-05 RR:TC:SM 559626 KKV
Mr. Mick W. Blakely
Border Brokerage Company
P.O. Box 3549
Blaine, Washington 98231
RE: Country of origin marking; NAFTA; student agenda;
handbook; 19 CFR 134.46; HQ 731663; HQ 731882; HQ
734164; conspicuous; 19 CFR 134.43
Dear Mr. Blakely:
This is in response to your letter dated January 4, 1996
and subsequent facsimile dated October 3, 1996, which
requests a ruling concerning the country of origin marking
requirements for merchandise described as a "student
handbook" to be imported into the U.S. from Canada.
Specifically, your letter inquires whether the proposed
marking "Printed in Canada and U.S.A., Assembled in Canada"
would be acceptable to Customs. A sample of the finished
student handbook has been supplied for our examination.
FACTS:
The "student handbook" submitted for our examination is
similar to the "Premier School Agenda" for which Customs
previously issued a ruling (HQ 085515, dated December 14,
1989). The article is a spiral bound, plastic-covered book
measuring 8 « inches by 11 inches. The handbook, entitled
"School Agenda" is sold to school systems throughout the
U.S. and Canada for elementary school students to use as an
organizational tool. It contains a weekly planner section
to encourage the formulation and implementation of study
strategies and provides a daily parent/teacher comment
section to facilitate communication between these two
parties. Colored pictures are interspersed throughout the
book, as are study tips, motivational quotations and lessons
in a variety of topics, e.g., civic responsibility, personal
health, etc. The planner also contains helpful reference
material for such subjects as spelling, mathematics, and
geography. We are informed that the aforementioned material
is printed in the U.S. on U.S.-origin paper. The book also
contains a section containing a calendar of the school year
and school-related reference material, e.g., staff, hours of
operation, attendance policy, etc. We are informed that
this material is printed in Canada on U.S.-origin paper.
The aforementioned material is spiral-bound between two
plastic covers, which are both printed and laminated in
Canada. The outside of the back cover is printed with the
logo of the manufacturer together with the words "Premier
School Agendas" and the date of the academic school year.
The inside of the back cover is printed with a standard
ruler, a calendar and mathematics reference material. The
outside of the front cover depicts a school logo and motto,
with the words "School Agenda" and the date of academic
school year. The inside of the front cover is printed with
a metric ruler and copyright information, including
addresses for the holders of both the Canadian and U.S.
copyright holders, as well as the address of U.S. supplier
of material contained within the handbook . You propose to
mark the inside of the front cover, "Printed in Canada and
U.S.A., Assembled in Canada."
ISSUE:
Whether a student agenda assembled in Canada from
material printed in the U.S. on U.S.-origin paper and
material printed in Canada on U.S. paper may be marked
"Printed in Canada and U.S.A., Assembled in Canada."
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 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. By enacting 19 U.S.C.
1304, Congress intended to ensure that the ultimate
purchaser would be able to know by inspecting the marking on
the imported goods the country of which the goods are 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,
302 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. One of the exceptions to the
general marking requirement is codified in 19 U.S.C.
1304(a)(3)(D) (as implemented by 19 CFR 134.32(d)), which
provides that an article may be excepted from marking if the
marking of its container will reasonably indicate its origin
to the ultimate purchaser. As provided in section 134.41,
Customs Regulations (19 CFR 134.41), the country of origin
marking is considered to be conspicuous if the ultimate
purchaser in the United States is able to find the marking
easily and read it without strain. The degree of
permanence of the marking should be at least sufficient to
insure that in any reasonably foreseeable circumstance, the
marking shall remain on the article until it reaches the
ultimate purchaser unless it is deliberately removed. The
marking must survive normal distribution and store handling.
Section 134.1(b), Customs Regulations (19 CFR 134.1(b)),
defines "country of origin" as:
The country of manufacture, production, or
growth of any article of foreign origin
entering the United States. Further work
or material added to an article in another
country must effect a substantial
transformation in order to render such
other country the "country of origin"
within the meaning of this part; however
for a good of a NAFTA country, the NAFTA
Marking Rules will determine the country
of origin. (Emphasis added).
Section 134.1(j), Customs Regulations (19 CFR 134.1(j),
provides that the "NAFTA Marking Rules" are the rules
promulgated for purposes of determining whether a good is a
good of a NAFTA country. Section 134.1(g), Customs
Regulations (19 CFR 134.1(g)), defines a "good of a NAFTA
country" as an article for which the country of origin is
Canada, Mexico or the United States as determined under the
NAFTA Marking Rules, set forth at 19 CFR Part 102. Section
134.45(a)(2) of the Customs regulations (19 CFR
134.45(a)(2)), provides that a "good of a NAFTA country" may
be marked with the name of the country of origin in English,
French or Spanish.
Section 102.11, Customs Regulations (19 CFR 102.11),
sets forth the required hierarchy for determining whether a
good is a good of a NAFTA country for marking purposes.
This section states that the country of origin of a good is
the country in which:
(1) The good is wholly obtained or produced;
(2 The good is produced exclusively from domestic
materials; or
(3) Each foreign material incorporated in that
good undergoes an applicable change in tariff
classification set out in section 102.20 and
satisfies any other applicable requirements of
that section, and all other applicable
requirements of these rules are satisfied.
Section 102.1(e), Customs Regulations (19 CFR 102.1(e))
defines "foreign material" as "a material whose country of
origin as determined under these rules is not the same
country or origin as the country in which the good is
produced.
Because the student handbooks are assembled in Canada of
components from the U.S. and Canada, the handbooks are
neither wholly obtained or produced, nor produced
exclusively from domestic materials. Accordingly, 19 CFR
102.11(a)(3) is the applicable rule that next must be
applied to determine the origin of the handbooks.
Upon examination of the submitted sample, the Textiles
Classification Branch concluded that, upon importation into
the U.S. from Canada, the student agenda is classified under
4820.10.2010, HTSUS, as registers, account books notebooks,
order books, receipt books, letter pads, memorandum pads,
diaries and similar articles: diaries, notebooks and address
books, bound; memorandum pads, letter pads and similar
articles, diaries and address books. The unbound stack of
colored printed sheets exported to Canada for assembly are
classified under 4911.91.4040, HTSUS, as other printed
matter, including printed pictures and photographs. Your
facsimile indicates that the unbound blank sheets exported
to Canada for printing and assembly are classified under
subheading 4802.52.2020, HTSUS. Because no information has
been supplied which would permit us to verify the validity
of this classification (i.e., fiber content, weight, etc.)
we will assume it is correct, for purposes of this ruling.
Pursuant to 19 CFR 102.11(a)(3), the country of origin
of a good is the country in which each foreign material
incorporated in that good undergoes an applicable change in
tariff classification as set forth in 19 CFR 102.20, which
sets forth the specific tariff classification changes and/or
other operations, which are specifically required to occur
in order for country of origin to be determined on the basis
of operations performed on the foreign materials contained
in a good. In the case before us, because the finished
student agenda imported from Canada is classified under
4820.10.2010, the change in tariff classification must be
made in accordance with section 102.20(j), Section X:
Chapters 47 through 49, subheading 4817 - 4822, HTSUS, which
requires "[a] change to headings 48.17 through 48.22 from
any other heading, including another heading within that
group.." The unbound printed pages, which, are initially
classified under 4911.91.4040, HTSUS, and unbound blank
pages initially classified under 4802.52.1010, HTSUS, are
each subsequently classified under subheading 4820.10.2010,
HTSUS, as a result of further processing in Canada.
Accordingly, each of the foreign materials incorporated in
the student agenda undergoes the applicable tariff shift.
Consequently, the country of origin of the finished student
agenda is Canada.
With regard to the language and placement of the
proposed marking, we note that section 134.46, Customs
Regulations (19 CFR 134.46), requires that when 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,
appear 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. Customs
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 (HQ
708994, dated April 24, 1978). The purpose of 19 CFR 134.46
is to prevent the possibility of misleading or deceiving the
ultimate purchaser as to the origin of the imported article.
Customs has previously considered country of origin
marking with respect to books. In Headquarters Ruling (HQ)
731663, dated July 18, 1989, Customs held that country of
origin marking located on the title page or on the back of
the title page of a book satisfied the requirement of
conspicuousness set forth in 19 U.S.C. 1304 and section
134.41, Customs Regulations (19 CFR 134.41), provided the
marking was easily located and could be read without strain.
We noted that a reader (the ultimate purchaser) would
reasonably be expected to look to the title page or back of
the title page for information of this type. Customs
indicated, however, that section 134.41 does not require
that the country of origin marking appear in the most
conspicuous place or any other specific location, and held
merely that the title page or back of the title page of a
book was one conspicuous location where the ultimate
purchaser might be expected to look for country of origin
information.
In HQ 734164, dated September 23, 1991, Customs
clarified its position as taken in 731633, holding that the
printing of country of origin information in locations other
than the title page may also satisfy the conspicuousness
requirement so long as the marking is easy to find.
However, if the requirements of 19 C.F.R. 134.46 are
triggered by the presence of a place name other than the
country of origin, the country of origin marking must be on
the same side or surface of the book as the triggering
language.
In HQ 731882, dated October 31, 1989, Customs discussed
country of origin marking for children's books. Customs
differentiated between children's literature and that
marketed for adults, noting that children's books, which are
designed to afford entertainment principally through
pictures and text read aloud by an adult, may list copyright
and publication information on the front or rear of a hard
cardboard cover, or on the insides of the covers, rather
than upon the title page, as is traditional in adult
literature. Customs held that, where a children's book does
not incorporate a conventional title page, country of origin
marking located on the outside or inside of the cover of the
book is conspicuous and will satisfy the requirements of 19
U.S.C. 1304, provided that the lettering is easily located
and can be read without strain. Additionally, Customs held
that, on any page containing publication, copyright, or
promotional information in which a reference to a country or
locality other than the country of origin appears, 19 CFR
134.46 requires that the country of origin appear on the
same page in comparably-sized lettering.
In the instant case, we note that, similar to the facts
presented in HQ 731882, the copyright and publication
information for the student handbook under consideration is
not contained on a title page, but is, instead, printed on
the inside front cover. Moreover, we note that this is the
same location in which both Canadian and U.S. addresses are
also printed accompanied by a sizeable amount of other
information, displayed in a variety of type sizes and
degrees of boldness. Therefore, consistent with our
position taken above, country of origin information for the
student handbook at issue may be appropriately located
inside the front cover of the planner provided that the
actual lettering of the origin information may be easily
located on the page and may be read without strain.
Inasmuch as the stricter marking requirements of 19 CFR
134.46 are triggered by the presence of the non-origin
geographical references, it must be in at least a comparable
size to such other references and the name of the country of
origin preceded by "Made in," "Product of," or other words
of similar meaning. Pursuant to 19 CFR 134.43, the words
"Assembled in" may only be used where the country of
assembly is the country of origin of the imported article.
You propose to mark the subject handbook "Printed in
Canada and U.S.A, Assembled in Canada." With regard to
printed material, such as a book or student agenda, the
phrase "Printed in" is an indicator of origin. Therefore
use of both "Printed in" and "Assembled in"sets forth two
conflicting origin statements, creating the probability of
confusion on the part of the ultimate purchaser. Therefore,
the proposed marking "Printed in Canada and U.S.A.,
Assembled in Canada" is unacceptable. However, in the
alternative, Customs would accept, "Product of Canada,"
"Made in Canada" or "Assembled in Canada from U.S. paper."
Additionally, we note that, although the name and
address of a school will be printed on the first page of the
student agenda, we believe that no one will be confused
regarding the origin of the student planner by this
reference. In several rulings, Customs has indicated that
geographic references appearing in connection with an
imported article do not necessarily trigger the requirements
of 19 CFR 134.46. In HQ 732329, dated July 29, 1989, we
ruled that an address on a warranty card did not pose a risk
of confusion or deception to the ultimate purchaser. In
other rulings, Customs determined that certain information
provided to enable consumers to contact the company
regarding complaints or questions about the product did not
trigger the requirements of 19 CFR 134.46. (See HQ 733840,
dated February 1, 1991, where garment hang tags, which
included a telephone number of the company and language
which invited the consumer to contact the company for
informational purposes, did not trigger the requirements of
19 CFR 134.46; see also HQ 733909, dated January 15, 1991,
where a U.S. address of an environmental group was not
misleading.) The basis of these rulings was that while the
names and addresses, taken alone, would appear to be the
kinds of potentially confusing information addressed by 19
CFR 134.46, their context was such that no confusion as to
country of origin was conceivable. In our opinion, the
address of a school presents this kind of circumstance. (We
assume for the purposes of this ruling that the agendas are
not distributed to the students, but are purchased by
students themselves, for their own use; and therefore the
students are ultimate purchasers of the student agenda.)
The agendas will be purchased by students, who will
understand their school address does not relate to the
origin of the planner. Therefore, printing of the school
address on the first page of the student agenda does not
trigger the requirements of 19 CFR 134.46.
HOLDING:
Imported student agendas assembled in Canada from
material printed in Canada and the U.S. on U.S.-origin paper
are considered goods of Canada but may not be marked,
"Printed in Canada and U.S.A., Assembled in Canada."
However, in the alternative, Customs would accept, "Product
of Canada," "Made in Canada" or "Assembled in Canada from
U.S. paper."
A copy of this ruling letter 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
Customs officer.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division