MAR-2-05 CO:R:C:V 734148 GRV
Area Director of Customs
JFK Airport, Bldg. 178
Jamaica, NY 11430
RE: Decision on Application for Further Review of
Protest xxx concerning country of origin marking of
knit garments. 19 CFR 134.46; comparable size
requirement; hang tag; 19 CFR 134.52; 19 CFR 134.54
Dear Sir:
This is in response to the above-referenced protest, filed by
Soller, Singer & Horn (now Soller, Shayne & Horn), on behalf of
Mexx USA Inc., contesting your July 13, 1990, decision to issue
marking/redelivery notices on three entries of ladies knit blouses
and sweaters from Hong Kong determined to be improperly marked with
their country of origin by virtue of a hang tag attached to the
garments.
In response to requests from this office for a sample of the
hang tag in dispute, Counsel submitted a copy of the hang tag by
letter dated September 10, 1991. The authenticity of the hang tag
copy as that in dispute was verified by the Commodity Team Leader
at JFK as a "reasonable facsimile" in a telephone conversation with
a member of my staff on October 4, 1991.
FACTS:
Between approximately June 27 and July 2, 1990, the importer
entered three shipments of ladies wearing apparel (knit blouses
and sweaters) from Hong Kong containing 2,112, 384 and 1,200 pieces
each. (It is disputed whether all of the garments were marked with
a fabric label sewn into the center of the neck area inside the
merchandise, however, this Protest only concerns the markings on
the hang tags affixed to the garments, which references a locality
(Europe) other than the country of origin (Hong Kong)).
The entries were collectively inspected on July 3, 1990 and
each was determined to be not legally marked. One reason the
merchandise was determined to be not legally marked was because
the fabric labels were not located in the nape of the garments neck as required. Another reason for the marking determination
concerned the fiber content information denoted on the fabric
label, which is required by the Federal Trade Commission (FTC).
Both reasons were denoted on each Customs Form 4647 (Notice of
Redelivery-Markings, etc.) issued.
On July 13, 1990, it appears that the FTC fiber content issue
was favorably resolved, i.e., the FTC decided that the garments'
labels were properly marked. The importer alleges that, "[u]pon
learning that there was no apparent problem with the three
shipments, [it] began immediately filling outstanding orders for
this merchandise," apparently believing "there was no effective
restraint on these goods." However, because of the markings on the
hang tags, second Notices of Redelivery-Marking were issued for
each entry on July 13, 1990, instructing the importer to either
mark the garments so that the "Made in Hong Kong" country of origin
marking was as prominent as the "Styled in Europe" designation or
to remove the "Styled in Europe" designation from the hang tag.
Regarding the hang tags, the sample submitted shows the
"Styled in Europe" designation to be uniformly printed across the
bottom of the hang tag in bolded white lettering on a black
background in approximately 15-point type (>3/16" letters),
whereas, the "Made in Hong Kong" marking is variously handwritten
on a small circular sticker label separately affixed to the hang
tag at the other end--some 3+ inches away--from the Europe
designation and is denoted in black ink on a white background in
letters ranging from approximately 3-10-point type (<1/16->1/8"
letters).
On July 24, 1990, the importer signed the Customs Forms 4647,
indicating that the merchandise had been correctively marked, but
did not submit samples of the marking. The next day (July 25,
1990) Customs officials attempted to inspect the redelivered
merchandise, but only a portion of the entries was available:
(1) 870 of the 2,112 pieces from the first shipment,
(2) 29 of the 384 pieces from the second shipment, and
(3) 400 of the 1,200 pieces from the third shipment.
These portions of the entries were found to be correctly marked,
as the hang tags were removed from the merchandise. On August 15,
1990, Customs Forms 5955A (Notice of Penalty or Liquidated Damages
Incurred and Demand for Payment) were issued on each entry, and on
August 16, 1990, Customs Forms 29 (Notices of Action) were issued
on each entry, informing the importer that marking duties of 10%
were being assessed on each entry for the missing portion of
merchandise in each entry.
The present Protest (Customs Form 19) was filed August 17,
1990.
Counsel contends that the garments were properly marked, in
that the hang tag labels contained clear and prominent language
that the goods were "Made in Hong Kong," so that the issuance of
the marking/redelivery notices were without legal justification.
Counsel claims that, in addition to the country of origin marking
on the hang tags, "made in Hong Kong" appeared in two other places
on these garments--(1) a fabric label at the nape of the neck, and
(2) another fabric label on the inside seam of the garment,
although which inside seam in not specified, so that no one could
possibly have been deceived as to the country of origin of these
goods.
ISSUES:
I. Does the country of origin marking on the hang tag comply with
the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.46?
II. Whether the issuance of the marking/redelivery notices was
proper in this case.
LAW AND ANALYSIS:
The marking statute, 304 of the 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
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 and exceptions of 19 U.S.C. 1304.
The primary purpose of the country of origin marking statute
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. Friedlaender & Co., 27 CCPA 297, 302,
C.A.D. 104 (1940).
Where locations other than the country of origin of the
merchandise appear on an imported article, 19 CFR 134.46 imposes
further marking requirements. This regulation provides that:
[i]n 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 locality 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, 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.
The purpose of this regulation is to prevent the possibility of
misleading or deceiving the ultimate purchaser as to the origin of
the imported article, 19 CFR 134.36(b), and constitutes a separate
consideration than whether the country of origin marking itself is
conspicuous. See, Headquarter Ruling Letter (HRL) 733888 dated
October 9, 1991 (water heaters not conspicuously marked, however,
marking requirements of 19 CFR 134.46 were met). Thus, counsel's
arguments that the primary fabric label(s) completely fulfilled the
country of origin marking requirements prescribed by 19 U.S.C. 1304
and that the hang tag markings have no bearing whatsoever on the
proper identification of the country of origin are dismissed as
irrelevant. In this case, both the comparable size and close
proximity requirements of 19 CFR 134.46 are in issue.
In C.S.D. 79-36, we considered whether a label, indicating
that trousers made in Hong Kong were "Styled in London" and
attached to the outer waistband of the trousers, complied with the
marking requirements of 19 CFR 134.46. Finding that the label did
not satisfy the comparable size requirement, Customs noted that the
phrase "Styled in London" was potentially misleading to ultimate
purchasers because it appeared prominently across the label in
contrasting colors in letters twice the size of those denoting the
country of origin marking--"Made in British Hong Kong," which was
printed in uncontrasting colors.
Concerning the location of country of origin markings for
purposes of meeting the close proximity requirement of 19 CFR
134.46, we have ruled that the country of origin must appear on
the same side(s) or surface(s) on which the name of the locality
other than the country of origin appears. See, HRL 734232 dated
November 20, 1991. In this case, although the sample hang tag
submitted was marked on the same side as the "Styled in ..."
marking, as the country of origin marking is accomplished by means
of affixing a separate small sticker to the "Styled in ..." tag and
no assurances were made that this location methodology held true
for the marking of all the hang tags, there exists a legitimate
concern respecting the close proximity location of the other
sticker markings on the other hang tags.
Concerning the print size and type used to denote the country
of origin markings for purposes of meeting the comparable size
requirement of 19 CFR 134.46, we have stated that the term
"comparable" does not mean "identical," but rather "sufficiently
similar." HRL 733736 dated June 19, 1991. In this case, we do
not believe that the present country of origin marking is
sufficiently similar to the "Styled in ..." marking. Comparing
the two markings we find the following:
Country of Origin Marking Other Locality Reference
1. Manner of type -
variously handwritten uniformly printed
2. Location of marking -
on separate small uniformly across bottom
sticker variously of hang tag
affixed to hang tag
3. Print Size -
3-10-point type 15-point bolded
As material differences are found in each of these areas of
comparison, we do not find the country of origin marking to be
comparable in size to the locality other than marking. This is
especially the case here because the other locality reference is
presented in large letters in a bolded-letter format, whereas the
country of origin marking appears in small handwritten print. See,
C.S.D. 91-23 (we note that, in general, information present- ed in
a bold print type and/or a large print size tends to draw the
ultimate purchaser's attention away from other information that is
presented in a lighter-face type and/or a smaller print size).
Accordingly, we find that the subject garments were not legally
marked in that they did not satisfy the requirements of 19 CFR
134.46.
Imported articles determined to be not legally marked are
subject to the provisions of Subpart F of 19 CFR Part 134. Section
134.51 of this Subpart provides that when articles or containers
are found upon examination not to be legally marked, the district
director shall notify the importer on Customs Form 4647 to arrange
with the district director's office to properly mark the articles
or containers, or to return all released articles to Customs
custody for marking, exportation, or destruction. In this case,
the district director correctly followed this procedure in issuing
the CF 4647s for the not legally marked garments. This section
further provides that the identity of the imported articles shall
be established to the satisfaction of the district director.
Section 134.52 of this Subpart allows district directors to
accept certificates of marking that are supported by samples of
the articles required to be marked in lieu of marking under Customs
supervision if specified conditions are satisfied and requires the
district director to notify the importer when the certificate of
marking is accepted. In this case, the importer did not submit
supporting samples and was not notified by the district director
that the certificates were accepted. Thus, the importer's belief
"there was no effective restraint on these goods," was erroneous.
HOLDING:
The country of origin marking(s) on the hang tags do not
comply with the marking requirements of 19 U.S.C. 1304 and 19 CFR
134.46, in that material differences are present in the manner in
which the other locality marking is presented compared to the
country of origin. The print size and type used to denote the
country of origin marking is not comparable type to that used to
denote the other locality marking. Further, it is not certain that
the country of origin sticker is uniformly presented in close
proximity to, i.e., on the same side as, the other locality
reference, as the small sticker is separately affixed to the hang
tag. Thus, pursuant to 19 CFR 134.51, issuance of the marking/
redelivery notices was proper.
You are directed to deny the Protest in full. A copy of this
decision should be attached to the Customs Form 19 and mailed to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center - Room 762