MAR-2-05 CO:R:C:S 735372 KR
Ed Baker
A.N. Deringer, Inc.
30 West Service Road
Champlain, NY 12919
RE: Country of origin marking of imported sunflower growing kit;
Article 509, NAFTA, 19 CFR Part 102.
Dear Mr. Baker:
This is in response to your letter dated September 24, 1993,
and a telephone conversation on July 27, 1994, on behalf of
Seracon Products, requesting a country of origin ruling regarding
marking a sunflower growing kit.
FACTS:
You state that Seracon Products intends to import a
sunflower growing kit into the U.S. The pieces are separate and
are packaged into a reusable canister. The canister contains
sunflower seeds, a terra cotta pot and saucer, a bag of soilless
organic grow mix. The canister and grow mix are products of
Canada. The sunflower seeds are products of Japan. The terra
cotta pot and saucer are products of Germany. The top of the
canister has an adhesive label which is printed:
PACKAGED IN CANADA
REUSABLE CANISTER AND GROWING MIX
PRODUCTS OF CANADA
SUNFLOWER SEEDS - PRODUCT OF JAPAN
TERRA COTTA POT AND SAUCER
PRODUCT OF GERMANY
The canister has a label encircling it which is printed with:
MADE BY / FRABRIQUE PAR
SERACON PRODUCTS
MONTREAL, CANADA
However, in a telephone conversation on July 27, 1994, you stated
that you were going to remove the "MONTREAL, CANADA" from the
canister label, and only the top adhesive label would have any
geographical reference.
ISSUE:
Whether the adhesive label is an adequate country of origin
marking for the sunflower growing kit.
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 its 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. Friedlander & Co., 27
C.C.P.A. 297 at 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 134.1(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 U.S. 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 the marking laws and
regulations. The case of United States v. Gibson-Thomsen Co.,
Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an
article used in manufacture which results in an article having a
name, character or use differing from that of the constituent
article will be considered substantially transformed. In such
circumstances the U.S. manufacturer is the ultimate purchaser.
The imported article is excepted from individual marking and only
the outermost container is required to be marked. See 19 CFR
134.35.
The country of origin marking requirements for goods of a
NAFTA country are determined in accordance with Annex 311 of the
North American Free Trade Agreement, as implemented under the
North American Free Trade Implementation Act ("NAFTA") (Pub. L.
103-182, 107 Stat. 437 (December 8, 1993)); implemented by T.D.
94-4, NAFTA Interim Regulations (59 Fed. Reg. 110 (January 3,
1994))(to be codified at 19 CFR Parts 12, 102 and 134) as amended
(59 Fed. Reg. 5082 (February 3, 1994) and T.D. 94-1 (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 for
these goods are set forth in T.D. 94-1 (interim amendments to
various provisions of Part 134, Customs Regulations).
Section 134.1(b) of the interim regulations, defines
"country of origin" as:
the country of manufacture, production, or growth
of any article of foreign origin entering the U.S.
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 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), of the interim regulations, 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) of the interim regulations, defines a "good of a
NAFTA country" as an article for which the country of origin is
Canada, Mexico, or the U.S. as determined under the NAFTA marking
rules. Section 134.45(a)(2) of the interim regulations, provides
that a "good of a NAFTA country" may be marked with the name of
the country of origin in English, French or Spanish.
Part 102 of the interim regulations, sets forth the NAFTA
marking rules for purposes of determining whether a good is a
good of a NAFTA country for marking purposes. Section 102.11 of
the interim regulations, sets forth the required hierarchy for
determining country of origin for marking purposes. Section
102.11(a) of the interim regulations states that "[t]he 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 requirements of these rules are satisfied."
In this case, the applicable rule is 19 CFR 102.11(a)(3) of
the interim regulations. "Foreign Material" is defined in
section 102.1(e) of the interim regulations as "a material whose
country of origin as determined under these rules is not the same
country as the country in which the good is produced." In order
to determine whether Canada is the country of origin, we must
look at those materials whose country of origin is other than
Canada.
When imported individually, the sunflower seeds are
classified under HTSUS 1206.00 and the terra cotta pot and saucer
are classified under HTSUS 6914.90.80. However, in the condition
as imported in this case, i.e., as a sunflower growing kit, the
terra cotta pot and saucer and the sunflower seeds are classified
as a "set" pursuant to General Rules of Interpretation ("GRI") 3.
Under the circumstances presented, the kit would be classified
under the tariff provision for the pot and saucer, i.e.,
subheading 6914.90.80, HTSUS, as a result of the application of
GRI 3(c).
Thus, in this case, the specific tariff rule applicable to
the kit is set forth in 102.20(m), Section XIII: Chapters 68
through 70, which states: "A change to heading 6901 through
6914 from any other chapter."
However, 19 CFR 102.17(c) states that a foreign material
shall not be considered to have undergone the applicable change
in tariff classification set out in 19 CFR 102.11(a) and 102.20
by reason of a simple packaging operation. Thus, although it
appears that the sunflower seeds meet the tariff shift rule
specified for the kit, in this case, the change in tariff
classification is not recognized because it occurs merely as a
result of a simple packaging operation. 19 CFR 102.17(c).
Therefore, we find that origin of the kit cannot be
determined pursuant to section 102.11(a)(3). Moreover, section
102.11(b) is not applicable since the good (kit) is classified as
a set. However, section 102.11(c) provides, inter alia, that
for a good which is classified as a set under the HTSUS, the
country of origin of such a good is the country or countries of
origin of all materials that merit equal consideration for
determining the essential character of the good. Since we find
that each of the components of the kit (i.e. the seeds, pot and
saucer) merits equal consideration for determining the essential
character of the kit, the country of origin of the kit is the
country of origin of each of these components. Inasmuch as the
adhesive label lists the individual country of origin of each
component, it is an acceptable country of origin marking under
section 1304.
However, it should be noted that the canister qualifies as a
"usual container" pursuant to 19 CFR134.22(d)(1), and as a usual
container from a NAFTA country, even though reusable, the
canister itself is excepted from country of origin marking under
19 CFR 134.22(d)(2). Therefore, the words appearing on the
adhesive label indicating the country of origin of the reusable
canister, although acceptable, are not required.
The first line of the adhesive label states that the
sunflower growing kit is "PACKAGED IN CANADA". The marking of
where the packaging occurs is not required, and could be removed.
However, since it appears on the sample provided, it must satisfy
the country of origin marking regulations. 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,
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. 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 (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. In this situation, the "PACKAGED IN CANADA" appears in
larger print than the other country of origin designations. We
find this to be a violation of 19 CFR 134.46. Since "PACKAGED
IN CANADA" is not required to appear on the product, it must
either be removed, or the print size must be reduced so as to
more closely match the print size of the country of origin
designations of the contents.
HOLDING:
The adhesive label listing the individual countries of
origin of the contents of the sunflower growing kit is an
acceptable method of country of origin marking. However, the
marking on the front label "MONTREAL, CANADA" must be removed,
and the words "PACKAGED IN CANADA" printed on the adhesive label
must be either removed or reduced in size so that these words are
more closely matched to the print size of the country of origin
designations appearing on the
Sincerely,
John Durant, Director
Commercial Rulings Division