Country of origin marking of imported footbeds; 19 CFR 134.46;

HQ 561388 August 26, 1999 MAR-2 RR:CR:SM 561388 KSG CATEGORY: Marking Steven W. Baker, Esq. Steven W. Baker and Associates One Sutter Street Suite 1004 San Francisco, California 94104-4919 RE: Country of origin marking of imported footbeds; 19 CFR 134.46; Dear Mr. Baker: This is in response to your letter of May 7, 1999, on behalf of Birkenstock Footprint Sandals, Inc., asking if your proposed country of origin marking of footbeds made in Germany satisfies the country of origin marking requirements set forth in 19 U.S.C. 1304. You submitted a sample for our examination. FACTS: Birkenstock Footprints Sandals, Inc. (“BFS”) is the importer of footwear supplied by Birkenstock GMBH, Germany. This case involves footbeds that are made in Germany. The Birkenstock footbed is a cork, natural latex and suede or other fabric article “shaped like a healthy footprint” and designed to help guide the foot into the correct walking position. Some styles, including certain types of sandals, clogs, slides, and shoes, utilize a footbed which is separate and removable from the remainder of the footwear. While all Birkenstock products are sold with the footbed included and attached, in these items the footbed can be removed and replaced. BFS imports both complete footwear and footbeds separately for replacement purposes. The footbeds are marked “Made in Germany” or “Made by Birkenstock in Germany” and the marking is visible when the footbeds are attached to the footwear. Birkenstock GMBH, the supplier, is contemplating producing completed footwear in countries other than Germany (e.g., Portugal). The footbeds would still be made in Germany and would be shipped to the third country producers for insertion before sale and shipment. Another possible scenario is that the footwear would be shipped to Germany for insertion of the footbeds, quality control and boxing. BFS proposes to mark the footbeds with the phrase “Footbed made in Germany” or “Footbed made by Birkenstock in Germany.” The shoes would also be marked with their country of origin by stamping or branding the inside of the shoe and/or by a securely affixed tag or label. There would also be separate additional marking for German origin footwear whenever the marking on the footbed applied to the footbed only. ISSUE: Whether the proposed marking of imported footbeds satisfies the country of origin marking requirements set forth in 19 U.S.C. 1304. LAW AND ANALYSIS: Section 304 of the Tariff Act of 1930 (19 U.S.C. 1304), as amended, 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements of 19 U.S.C. 1304. For the purposes of this ruling request, we presume that the country of origin of the footwear is different than the footbed. Section 134.46, Customs Regulations (19 CFR 134.46), as revised by T.D. 97-72, dated August 20, 1997, provides: In any case in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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. Section 134.46 (revised) provides that its special marking requirements are triggered only when Customs determines that the non-origin marking may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. Customs has ruled that in order to satisfy the “close proximity” requirement, the country of origin marking must appear on the same sides(s) or surface(s) in which the name of the locality other than the country of origin appears. See HRL 708994, dated April 24, 1978. For footbeds that are imported for replacement purposes only, the proposed marking would not trigger the special marking requirements of 19 CFR 134.46 and would satisfy the requirements of 19 U.S.C. 1304. However , with regard to footbeds that are incorporated into footwear that is not made in Germany, the proposed marking of the footbed is potentially confusing and may mislead or deceive the ultimate purchaser. Therefore, it would trigger the requirements of 19 CFR 134.46. In order to satisfy the close proximity requirement, the country of origin of the footwear would have to appear on the footbed preceded by the phrase “Made in”, “Product of”, or similar words. HOLDING: The proposed marking of the footbeds that are imported for replacement purposes only satisfy the marking requirements of 19 U.S.C. 1304. The reference to “made in Germany” on the footbeds in cases in which the footbeds are incorporated into footwear with a different country of origin may mislead or deceive the ultimate purchaser as to the actual country of origin of the footwear. Therefore, the special marking requirements of 19 CFR 134.46 are triggered and pursuant to 19 CFR 134.46, the actual country of origin of the footwear must appear on the footbeds and in at least a comparable size lettering, to the Germany reference, preceded by the words “Made in,” “Product of,” or a similar phrase. 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 handling the transaction. Sincerely, John Durant, Director Commercial Rulings Division