THE COUNTRY OF ORIGIN MARKING OF BABIES’ WEARING APPAREL

N277848 August 25, 2016 MAR-2 OT:RR:NC:N3:358 CATEGORY: MARKING Mr. C.J. Erickson Cowan, Liebowitz & Latman, P.C. 114 West 47th Street New York, New York 10036 RE: THE COUNTRY OF ORIGIN MARKING OF BABIES’ WEARING APPAREL Dear Mr. Erickson: This is in response to your letter, dated July 20, 2016, requesting a ruling on behalf of your client, Zara USA Inc., a subsidiary of Inditex Group, as to whether the proposed marking by means of a textile country of origin label hanging on the outside of the garment from two braided yarns sewn into the side seam is an acceptable country of origin marking for imported babies’ garments. A marked sample was submitted with your letter for review. The sample is an infant girl’s jacquard woven dress printed with a floral pattern. The dress has a round neck with a front pleat, capped sleeves, a full opening in the back and a five button closure. There are no sewn-in labels on the garment; however, it appears that a sewn-in label has been removed from the inside neck area to the right of the opening. Approximately half way down the left side seam are four labels hanging on the outside of the garment from two braided yarns, approximately ¾ inch in length. The braided yarns are sewn into the side seam. The labels are stacked one on top of another and sewn together at the top of each label. The first label states “Zara BabyBoy,” “Size 9/12,” “cm 80,” “Made in Portugal.” The second label contains a bar code and the country of origin on the front and fiber content on the back. The third label contains manufacturer information on the front and care instructions on the back. The fourth label contains care instructions, as well. Approximately ¾ inch above the point the braided yarns are affixed to the garment, a cardboard hangtag is attached. The hangtag states “Zara BabyGirl collection” on the front and includes spaces for style and size information on the back. Fastened approximately half way down the right side seam is a loss prevention plastic security tag that would require removal prior to leaving the retail store. There are no labels attached to the plastic tag. In your letter, you requested authorization, on behalf of Zara USA, to mark its imported baby apparel with a permanently affixed country of origin label by means of a plastic fastener. The sample you provided is inconsistent with the facts provided in your letter. The sample did not include fabric labels secured with a plastic fastener. Additionally, your letter indicates the garment is manufactured in Spain while the garment is marked “Made in Portugal” on the first two labels. As the first label indicates “Zara Babyboy” and this garment is clearly for a baby girl as stated on the hangtag, the label details are suspect. Therefore, this ruling will only address the manner and placement of the marking as represented on the submitted sample. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. §1304), provides that, unless excepted, every article of foreign origin (or its container) 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. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), requires that the marking be conspicuous enough that an ultimate purchaser will be able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. In Treasury Decision (T.D.) 54640(6) (July 15, 1958), Customs determined that, in order to be conspicuous within the meaning of 19 U.S.C. §1304, the country of origin marking of wearing apparel such as shirts, blouses and sweaters must be accomplished by means of a fabric label or label made from natural or synthetic film sewn or otherwise permanently affixed on the inside center of the neck midway between the shoulder seams or in that immediate area or otherwise permanently marked in that area in some other manner. The decision also states that button tags, string tags and other hang tags, paper labels and other similar methods of marking will not be considered acceptable after the effective date of October 1, 1958. T.D. 54640(6) does not provide an exception for infant or children’s wearing apparel. See Headquarters Ruling Letter (HRL) 735359. Therefore, the placement of the marking on the dresses, as described above, is not considered to be conspicuously placed. The proposed marking does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported items. In your letter you assert that the merchandise from the manufacturer, Inditex Group, is uniformly produced, marked and labeled to accommodate the requirements of numerous countries and that meeting the U.S. requirement for a permanently affixed label in the nape of the neck would irritate a baby’s sensitive skin and require deconstruction of the garment after receipt from the Inditex fulfillment center. You are requesting a marking exception under 19 CFR 143.32(c) for all baby apparel imported by Zara USA Inc. Section 19 CFR 143.32(c) allows an exception from country of origin marking for “articles that cannot be marked prior to shipment to the United States except at an expense economically prohibitive of its importation.” The fact that such marking would result in economic hardship is not in and of itself sufficient to except the articles from the requirements of country of origin marking. See HRL 733990, dated June 17, 1991. The question that must be answered in the instant case is whether marking the country of origin by means of a permanently affixed label prior to importation in accordance with T.D. 54640(6) would be economically prohibitive of their importation. Although neither the statute nor the regulations defines the term “economically prohibitive,” several factors have been considered to help determine when marking an item would be economically prohibitive. These include situations in which the requirement to mark the article to indicate the country of origin would force the producer to incur a cost that would require the item to be marked at a price at which: (1) the item could not be sold since an individual would not buy it; (2) no profit could have been made; (3) the profit that could have been obtained would not have been sufficient to induce the importer to handle the item. See HRL 558994, dated April 21, 1995. It is the opinion of this office that you have not provided sufficient information upon which to grant an exception from individual marking based upon prohibitive economic expense. The mere assertion that marking will be "prohibitive," unsupported by actual cost estimates for marking the garments, could never be the basis for granting an exception to individual marking. Accordingly, in the absence of any basis upon which to make a finding, the garments cannot be excepted from country of origin marking under 19 U.S.C. 1304(a)(3)(C) and 19 CFR 134.32(c). It should be noted that textile fiber products imported into the U.S. must also be labeled in accordance with the Textile Fiber Products Identification Act (15 U.S.C. 70 through 70k) and the rules promulgated thereunder by the Federal Trade Commission. Questions concerning these requirements are covered under the Textile Fiber Products Identification Act. Therefore, we suggest that you contact the Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508, as to whether the proposed marking satisfies such requirements. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Kim Wachtel at kimberly.a.wachtel@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division