Reconsideration of New York Ruling Letter N223218, dated July 12, 2012; Country of Origin Marking of Certain Footwear.

HQ H230147 April 22, 2015 CLA-2 OT:RR:CTF:TCM H230147 MG CATEGORY: Marking Mr. John Pellegrini McGuire Woods LLP 1345 Avenue of the Americas New York, NY 10105-0106 RE: Reconsideration of New York Ruling Letter N223218, dated July 12, 2012; Country of Origin Marking of Certain Footwear. Dear Mr. Pellegrini: This is in response to your letter, dated July 12, 2012, on behalf of your client Genesco, Inc., requesting that U.S. Customs and Border Protection (“CBP”) reconsider New York Ruling Letter (“NY”) N223218, dated July 12, 2012. In NY N223218, CBP ruled that as the legend “An American Original” appears printed on the insole of the imported man’s leather shoe (“the imported leather shoes”), special country of origin marking was required, pursuant to 19 CFR § 134.46. A sample has been provided and will be returned. Our response follows. FACTS: The imported leather shoes at issue consist of a man’s lace up, below the ankle shoe, with a leather upper and an outer sole of rubber or plastics. The word “TRASK”, and below in smaller letters, the words “AN AMERICAN ORIGINAL” are printed on the foot bed or insole. The country of origin mark “MADE IN CHINA” is found adjacent to the shoe size on the top of the interior of the tongue. In NY N223218, the findings in regard to the adequacy of the country of origin markings were described as follows: We find that the marking “AN AMERICAN ORIGINAL” on the foot bed or insole invokes the requirements of section 134.46, Customs Regulations (19 C.F.R. §134.46). Consequently, the proposed country of origin marking located under the tongue would not be considered marked on the same side or surface and would not satisfy the close proximity requirement. ISSUE: What are the country of origin marking requirements for the imported leather shoes from China? LAW AND ANALYSIS: Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304 (2011)), 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) (emphases added). Part 134, U.S. Customs and Border Protection (CBP) Regulations (19 C.F.R. § 134 (2011)) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(b) defines “country of origin” as: [T]he 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 [the marking regulations]… Section 134.46 states in pertinent part: 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. Your letter asserts that the imported leather footwear has adequate and proper country of origin marking to inform the ultimate purchaser of the origin of the articles as it is easily found and may be readily seen by the ultimate purchaser. You further state that the placement of the origin mark, which is located at the very top of the tongue interior and adjacent to the shoe size, will allow the consumer who decides to purchase the subject merchandise to do so with full knowledge that such merchandise was not made in this country and that it was made in China. In support of this assertion, you cite to HQ 731663, dated July 18, 1989, which states: If there is a foreign reference to a country other than the country of origin on the title page of a book, 19 CFR 134.46 is satisfied if the country of origin appears on the front or back of the title page. With regard to HQ 731663, you also state that HQ 734164, dated September 23, 1991, further states that: The intent of this ruling was to indicate that the close proximity requirement of 19 CFR 134.46 would be satisfied even if the country of origin marking was on front of the title page when a U.S. address was on the back of the title page or vice versa. This was based on the observation that the purchaser who looked at the title page would likely view both the front and back of the title page for all the pertinent information. Pursuant to § 134.46, country of origin markings are required to be in close proximity of the name of any foreign country or locality other than the country or locality in which an article was manufactured if the words or phrases relating to the foreign country or locality are misleading or deceiving the ultimate purchaser as to the actual country of origin of the article. You posit that because the purchaser of the imported leather footwear could read the origin mark, if looking for the size of the shoe, the purpose of § 134.46 will be satisfied. In the case of the imported leather footwear, because the origin mark is not located on the same side or surface as the reference to “America,” the issue is whether this may mislead or deceive an ultimate purchaser of the imported leather shoes as to where the subject merchandise was actually manufactured, which is China. In order to find the country of origin marking located at the top of the tongue interior, the potential buyer would have to loosen the laces and lift the tongue of the shoe in search of it. While a purchaser may do so to find the shoe size, the term “American”, which triggers the statutory requirement, is seen immediately upon approaching the shoe.  Therefore, in this regard, we find that the ultimate purchaser would be reasonably misled or deceived as to where the imported leather footwear is manufactured as the reference to “America” and the country of origin marking are not in close proximity. A similar issue was decided in HQ H562815, dated October 1, 2003. In this case, a country of origin marking appears as a sewn-on textile label on a woman’s leather upper boot with the words “MADE IN BRAZIL.” This marking label was situated on the inside of the tongue near the top. In addition, the bottom of the rubber outer sole of this boot is also marked with stamped-on legible lettering “MADE IN BRAZIL,” just above the boot size designation lettering indicating the shoe size. The tongue has two sewn-on textile patches, one in front just below the topline (at the top of the tongue) and the other on the inside surface near the top of the fabric portion of the tongue. The patches both depict an American flag with yellow starts and stripes on a dark gray background and the letters “USA” placed in the flag’s upper right quarter. In this instance, we found that the close proximity requirement was not met as the country of origin marking must appear on the same side or surface on which the name of the locality other than the country of origin appears and, since the shoes contain the flag and reference to “USA” on the front and back of the tongue, the tongue will have to be marked with its country of origin on both sides. With regard to the footwear at issue, we find that, pursuant to 19 U.S.C. § 1304, the imported leather footwear is not properly marked with the country of origin. HOLDING: Therefore, pursuant to 19 U.S.C. § 1304, the imported leather footwear is not properly marked with the country of origin. 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 transactions. EFFECTS ON OTHER RULINGS: NY N223218, dated July 12, 2012, is hereby affirmed. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division