Country of Origin Marking Requirements for Containers

HQ H063621 October 29, 2009 CLA-2: OT:RR:CTF:TCM H063621 KSH CATEGORY: Marking Kenneth G. Weigel, Esq. Alston and Bird LLP 950 F. Street N.W. Washington, DC 20004-1404 RE: Country of Origin Marking Requirements for Containers Dear Mr. Weigel: This letter is in response to your request of May 21, 2009, on behalf of your client Lanxess Corporation, in which you request a prospective ruling on the country of origin marking requirements for containers. FACTS: Lanxess purchases raw materials such as iron oxide which are incapable of being marked but which are shipped in marked containers. The containers which reach the ultimate consumer are marked “Made in Germany/EC.” ISSUE: Whether the containers may be marked “Made in Germany/EC”. Whether a temporary exception may be granted for the present inventory of containers as it is economically prohibitive to comply with the requirements of 19 CFR 134.46. 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. In the instant matter, the containers are marked as “Made in Germany/EC.” You state that the phrase “/EC” is merely descriptive language which complements the country of origin statement which will not confuse the ultimate purchaser as to the country of origin. The virgule also known as a slash or slant, etc., is used between two words to indicate that they are alternatives and should not be used where the word “or” could not be used in its place. See Kenneth Wilson, The Columbia Guide to Standard American English. NY, Columbia University Press, 1993 and http://grammar.ccc.commnet.edu. CBP’s policy is that in most circumstances, it is not acceptable for purposes of 19 U.S.C. 1304 to mark an article with the legend "Product of ____ or ____". In C.S.D. 89-111 certain effervescent enzymatic cleaner tablets from either West Germany or the U.S. were packaged into retail containers. While CBP acknowledged that the seller could avoid expense by using the disjunctive marking, "Tablets Made in West Germany or the United States", CBP held that fully accurate marking would not amount to an economic prohibition, and, therefore, required the package to be marked with only the actual country of origin. Otherwise, the disjunctive marking would do no more than indicate the possibility that the tablets may be of foreign origin. (It was also noted that since only one foreign source was involved, West Germany, and the packages would contain either tablets from the U.S. or West Germany, only one label was necessary to satisfy the country of origin marking requirements. When the tablets were of U.S. origin, no country of origin marking was necessary.) Consequently, the marking “Made in Germany/EC” indicates that the merchandise may originate in Germany or the EC. As stated above, CBP generally does not accept marking in the disjunctive. Moreover, CBP does not accept marking merchandise as a product of the EC, because the EC is not a country. See New York Ruling Letter (NY) R01260, dated February 4, 2005. Therefore, marking the containers “Made in Germany/EC” is not acceptable. You have requested that if marking the containers “Made in Germany/EC” is not permissible, a temporary marking exception be granted until December 2010 to allow the current supplier to exhaust the current supply of containers and fix the incorrect marking. Section 134.32(c), CBP Regulations (19 CFR §134.32(c)) provides an exception from the marking requirements for articles that cannot be marked prior to shipment to the U.S., except at an economically prohibitive expense. Section 134.32(o) provides an exception for marking articles which cannot be marked after importation except at an expense that would be economically prohibitive unless the importer, producer, seller, or shipper failed to mark the article before importation to avoid meeting the requirements of the law. We are satisfied that based on the facts presented in this case, a temporary exception to strict compliance with the marking requirements of 19 CFR 134.46 may be allowed pursuant to 19 CFR 134.32(o). This exception will only be applicable until the present inventory of containers is exhausted, which is estimated to be December 2010. The country of origin markings on all containers entered on or after January 1, 2011 must be conspicuous, legible, and not appear in the disjunctive. HOLDING: It is not permissible to mark containers in the disjunctive “Made in Germany/EC.” Due to the increased costs and burdens resulting from remarking the proper country of origin on the containers, a temporary exception from strict compliance with the requirements of 19 CFR 134.46 will be permitted until the present supply of containers is exhausted or until the end of 2010 whichever occurs first. All containers entered on or after January 1, 2011 must be marked in full compliance with all statutory and regulatory requirements of the country of origin marking law, including 19 CFR 134.46. 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 CBP officer handling the transaction. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch