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HQ 558647

November 30, 1994

MAR-2-05 CO:R:C:S 558647 MLR


Mr. Sheldon Rosenberg
P.O. Box 810489
Dallas, TX 75381

RE: Country of origin marking of barley; Article 509; NAFTA Marking Rules; disjunctive; "and/or"

Dear Mr. Rosenberg:

This is in reference to your letter of July 25, 1994, requesting a ruling regarding the country of origin marking requirements of barley. A sample of barley with the brand name "Jack Rabbit" in a polyethylene bag is submitted with your request.


Arrow/Klein-Berger ("Arrow") packages dry beans, peas, lentils, and barley in the U.S. Currently, all of the barley that Arrow packages comes from Minnesota. However, Arrow plans to package Canadian-origin barley, but use U.S.-origin barley when the Canadian barley is not available. Arrow wishes to mark the polyethylene bag "Product of U.S.A. and/or Canada." Arrow claims that it is too difficult to maintain two sets of polyethylene bags for each origin of barley since Arrow packages 25 different brands of barley, some in two different sizes.


Does the proposed marking "Product of U.S.A. and/or Canada" on the retail packages of barley satisfy the country of origin marking requirements?


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 imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or 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. 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. Friedlaender & Co. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. Section 134.25, Customs Regulations (19 CFR 134.25), requires that containers of repackaged J-List articles or articles incapable of being marked must be marked to indicate the country of origin of the contents by either the importer who repackages the articles or the purchaser or transferee of such articles who does the repacking, and that the importer must certify to the district director on entry that the repacked containers will be marked or that he will notify the purchaser or transferee of such marking requirements.

The country of origin marking for a "good of a NAFTA country" is determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057 (December 8, 1993), the interim amendments to the Customs Regulations, published as T.D. 94-4, 59 Fed. Reg. 109 (January 3, 1994) with corrections published at 59 Fed. Reg. 5082 (February 3, 1994), and T.D. 94-1 published at 59 Fed. Reg. 69460 (December 30, 1993). These interim amendments took effect on January 1, 1994, to coincide with the effective date of the NAFTA.

The marking rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements of these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).

Section 102.12, Customs Regulations (19 CFR 102.12) provides that:

[w]hen fungible goods of different countries of origin are commingled the country of origin of the goods:

(a) is the countries of origin of those commingled goods; or

(b) If the good is fungible, has been commingled, and direct physical identification of the origin of the commingled good is not practical, the country or countries of origin may be determined on the basis of an inventory management method provided under the Appendix to part 181 of the Customs Regulations.

Section 102.1(f), Customs Regulations {19 CFR 102.1(f)}, defines fungible goods or fungible materials as "goods or materials that are interchangeable for commercial purposes and whose properties are essentially identical." "Commingled" is defined as "physically combined or mixed." 19 CFR 102.1. Consequently, if Canadian barley is commingled and packaged with U.S. barley, the marking "Product of U.S.A. and Canada" on the polyethylene bag will be acceptable.

However, in regard to the use of "Product of U.S.A. and/or Canada", it is generally Customs policy not to accept an article marked in the disjunctive since this does not indicate the actual country of origin as required by 19 U.S.C. 1304.

You refer to Headquarters Ruling Letter (HRL) 734165 dated December 2, 1991, where U.S.- and foreign-made LEGO bricks and shapes were commingled together in containers and then, by a random process, packaged into retail packages. The phrase "Made in Denmark, Switzerland, and U.S.A." was approved since it was highly probable that a LEGO set would contain some pieces from all three countries, and, therefore, the marking on the container would properly inform the ultimate purchaser of the countries of origin in the LEGO set.

The LEGO case is not applicable in this situation where the retail bags will only contain either Canadian barley or U.S. barley depending on the supply of the Canadian barley. Rather, we find C.S.D. 89-111 to be applicable where effervescent enzymatic cleaner tablets from either West Germany or the U.S. were packaged into retail containers. While Customs acknowledged that the seller could avoid expense by using the disjunctive marking, "Tablets Made in West Germany or the United States", Customs 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 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; therefore, either separate boxes could be maintained, one disclosing the presence of West German tablets, the other with no country of origin necessary, or alternatively, adhesive labels disclosing the West Germany tablets could be affixed as needed.

Accordingly, if either Canadian or U.S. barley is packaged into polyethylene bags, the bags may not be labeled "Product of U.S.A. and/or Canada." However, as noted in C.S.D. 89-111, the bags containing U.S. barley do not require any country of origin marking, only the bags containing Canadian barley. Therefore, either separate bags with the marking "Product of Canada" will be required when Canadian barley is used, or a label may be affixed as needed.


On the basis of the information submitted, if Canadian and U.S. barley are commingled and packaged in polyethylene bags, the marking "Product of Canada and U.S.A." will be acceptable. However, if either Canadian or U.S. barley is packaged into polyethylene bags, the bags may not be labeled "Product of U.S.A. and/or Canada", but must be labeled "Product of Canada" if Canadian barley is used.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


John Durant, Director

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