Country of Origin Marking Requirements for pillow and mattress covers

HQ H031395 December 8, 2008 CLA-2 RR:CTF:TCM H031395 KSH CATEGORY: Marking Larry Ordet, Esq. Nicole Kehoskie Sandler, Travis & Rosenberg, P.A. 5200 Blue Lagoon Drive Miami, FL 33126-2022 RE: Country of Origin Marking Requirements for pillow and mattress covers Dear Mr. Ordet and Ms. Kehoskie: This is in response to your letter dated April 22, 2008, on behalf of your client American Textile Company, in which you requested a binding ruling pertaining to the country of origin marking requirements for pillow and mattress covers. The National Commodity Specialist Division in New York referred your letter to this office for a response. In reaching our decision, additional consideration was given to the substance of a conference held with a member of my staff on July 14, 2008 and additional submission dated August 29, 2008. FACTS: The merchandise at issue consists of pillow and mattress covers. The covers are formed from fabrics of unspecified countries that are cut and assembled in El Salvador. American Textile Company intends to import the pillow and mattress covers into the U.S. for sale within the U.S. or storage for future export and sale within Canada. The country of origin for U.S. Customs and Border Protection’s (CBP) purposes is the country in which the fabric was formed. The country of origin for Canadian Customs purposes is El Salvador. You have proposed to mark the merchandise with a label which states, “For U.S. marking purposes: Product of Country X / For Canadian marking purposes: Product of El Salvador.” ISSUE: Whether the merchandise can be marked as proposed? 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. 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). The country of origin 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. See 19 CFR §134.41(b), CBP Regulations, and Headquarters Ruling Letter (HQ) 562832, dated October 10, 2003. When the name of any foreign country other than the country in which the article was manufactured or produced appears on the imported merchandise or its container, the special marking rules of 19 CFR §134.46, CBP Regulations are triggered. Section 134.46 provides as follows: 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. You argue that the ultimate purchaser in the U.S. will not be misled or deceived as to the actual country of origin according to U.S. law. You cite to HQ 720840, dated August 26, 1983, as instructive. In HQ 720840, we determined that country of origin marking in English and French was acceptable as the use of the French country of origin marking was intended to comply with the country of origin marking requirements of Canada and the Province of Quebec and not deceive the ultimate purchaser as to the origin of the items. The proposed marking for the instant merchandise indicates two different countries of origin, one for U.S. CBP purposes and one for Canadian Customs purposes. As such, it is distinguishable from HQ 720840, wherein a single country of origin was indicated in both English and French. Although the merchandise is properly marked to indicate the country of origin for U.S. CBP purposes, inclusion of the country of origin for Canadian Customs marking purposes is likely to mislead or deceive the ultimate purchaser. HOLDING: Based on the facts of this case, we find that the proposed marking method fails to satisfy the general marking requirements of 19 U.S.C. §1304 and the special marking requirements of 19 CFR §134.46. The ultimate purchaser is likely to be mislead or deceived as to the actual country of origin of the article. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch