HQ 735555

November 1, 1994

Mar-2-05 CO:R:C:S 735555 AT

CATEGORY: MARKING; CLASSIFICATION

TARIFF No.: 4911.10.0080

Ms. Denise Bennett-Chavoustie

Ms. Carin Moore

Trans Continental West Printing, Inc.

1420 Fifth Avenue, Suite 2200

Seattle, Washington 98101

RE: Classification and country of origin marking requirements of

various printed material imported from Canada; Article 509;

NAFTA Marking Rules; ultimate purchaser; section 134.1(d) of

the interim regulations; 19 CFR 134.32(d)

Dear Ms. Bennett-Chavoustie and Ms. Moore:

This is in response to your letter dated February 25 1994,

forwarded to our office by the New York Seaport Area, requesting

a ruling on the appropriate classification and country of origin

marking requirements for certain printed materials imported from

Canada to be sold or distributed in the U.S. free of charge.

Samples were submitted with your letter for review. We regret

the delay in responding.

FACTS:

You state that Trans Continental West Printing, Inc. intends

to import into the U.S. from Canada printed material consisting

of unbound advertising publications, bound home and real estate

publications, bound advertising publications and bound travel

guides. You also state that the printed material will be either

sold or distributed in the U.S. free of charge. You have

requested the appropriate classification and country of origin

marking requirements for the sample printed material.

By letter dated July 22, 1994, you represent that the

printed material which is to be distributed in the U.S. free of

charge will have the word \"free\" printed on the front cover.

Also, any printed material which is intended to be sold in the

U.S. will have a \"price\" printed on the front cover.

By letter dated September 12, 1994, you have withdrawn your

request for a country of origin marking ruling for the following

printed material samples:

1.Harmon Homes

2.Ernst Home and Nursery

The following samples were submitted:

1.) Unbound Advertising Publications: The two samples

submitted are sheets of paper folded to form 8 pages of

advertising. They are published by (or on behalf of) a

drug store and a super market. They consist entirely

of advertisements for products sold in the stores.

There are no dates or numbers. U.S. references (e.g.

\"Neenah, Wi\" or \"Kankakee, Il\") are printed on the

advertisements themselves or on the front or back cover

of the publications.

2.) Bound Home and Real Estate Publications: These

are paper publications bound by staples. The three

samples submitted measure approximately 11 inches by 8

inches and have 104, 84, and 40 pages. They consist

entirely of advertisements pertaining to the sale of

homes: page after page of photographed homes with a

brief description below each photo, including, in most

instances, a price. Several pages in each publication

are advertisements for real estate companies, mortgage

companies, or real estate development companies. There

are no articles of either general or specialized

interest. One of the three samples is numbered and

dated, one is only dated, and the other is only

numbered. Several U.S. references also appear on these

publications. The word \"free\" appears on the front

cover of one of the sample publications.

3.) Bound Advertising Publications: The three samples

of this kind are paper publications bound by staples.

They measure 10 and 3/4 inches by 8 and 1/2 inches, 10

inches, and 5 inches by 8 and 1/4 inches. The first of

these publications is dated and has about 40 unnumbered

pages consisting entirely of advertisements for a

multitude of products and services, from mattresses and

appliances to auto body repair, carpet cleaning, and

landscape work. The second sample is dated and

numbered and has 16 pages. It is published by (or on

behalf of) a home and nursery store. It consists of

advertisements for particular products sold in the

store and brief articles concerning home decorating,

maintenance, and improvements and the kinds of products

needed to perform the decorating, maintenance, and

improvements discussed. The third sample is neither

dated nor numbered and has 15 pages. It is published

by an auto parts store. It consists entirely of

advertisements and coupons for products sold in the

store. The words \"Printed in Canada\" appear on the

back cover of each of the sample articles in black

lettering approximately 4.5 points (a point is a unit

of measurement approximately equal to 0.01384 inches or

nearly 1/72 inches).

4.) Bound Travel Guide: This sample is a paper

publication bound by staples. It measures 10 and 3/4

inches by 8 and 1/4 inches. It has 47 pages of ferry

schedules and numerous advertisements for hotels,

resorts, restaurants, stores, shops, and points of

interest (historical, geographical, and geological).

In addition to schedules, each ferry service and the

area it serves is briefly described. The guide serves

local commuters, vacationers, and travelers. The guide

publishes schedules for Washington (state) and British

Columbia destinations, through the Puget Sound and the

Straits of Juan de Fuca and Georgia. It is printed

three times per year and is dated but not numbered. A

price \"\$1.95 U.S./Cdn\" is printed in black lettering on

the top right corner of the front cover of the travel

guide. Various cities located in Washington state

(such as \"Seattle\", \"Vashon\", \"Fauntleroy\") appear on

the front and back cover of the travel guide. U.S.

references also appear on the inside pages of the

guide. The words \"Printed in Canada\" are printed on

the lower left corner of the back cover in black

lettering approximately 5 points.

ISSUES:

1\. Are the publications described above classifiable as

periodicals in heading 4902, Harmonized Tariff Schedule of the

United States (HTSUS), or as advertising materials in heading

4911, HTSUS?

2\. What are the country of origin marking requirements for

imported printed material distributed in the U.S. in the manner

described above?

LAW AND ANALYSIS:

I. CLASSIFICATION OF THE PRINTED MATERIAL

Classification under the HTSUS is accomplished in accordance

with the General Rules of Interpretation (GRI\'s). The systematic

detail of the Harmonized System is such that virtually all goods

are classified by application of GRI 1, that is, according to the

terms of the headings of the tariff schedule and any relative

section or chapter notes. In the event that goods cannot be

classified solely on the basis of GRI 1, and if headings and

legal notes do not otherwise require, the remaining GRI\'s will

then be applied in numerical order. Further, the Explanatory

Notes (EN\'s) to the Harmonized Commodity Description and Coding

System (HCDCS), which represent the official interpretation of

the tariff at the international level, facilitate classification

under the HTSUS by offering guidance in understanding the scope

of the headings and GRI\'s. Accordingly, the GRI\'s and EN\'s are

applied as the basis for the classification determinations

discussed below. (See Treasury Decision 89-80, 23 Cust. Bull.

379 (1989), 54 Fed. Reg. 35,127 (August 23, 1989).)

Unbound Advertising Publications

The unbound paper advertisements described in #1 above are

nothing more than unbound advertising papers and should be

classified under subheading 4911.10.0080, HTSUS, which provides

for other printed matter, trade advertising material, other.

Bound Home/Real Estate Publications and Product Advertising

Publications

It is clear that these publications are devoted entirely or

essentially to advertising. The home and real estate

publications (#2 above) contain, almost exclusively, advertising

for particular homes, with the occasional advertisement for a

mortgage company, real estate broker, or real estate development

the only exception. The product advertising publications (#3

above) are devoted entirely to the advertisement of products (and

services, such as auto repair) sold at retail. While this is

clear, the following question is raised: Does the fact that an

advertising publication is dated and published in a continuous

series mean that it is a periodical, even though the publication

contains only advertising?

The EN\'s for heading 4902, HTSUS, provide the following

(EN\'s, HCDCS, Vol. 2, p. 693):

The distinguishing feature of the publications of this

heading is that they constitute one issue in a

continuous series under the same title published at

regular intervals, each issue being dated (even by

merely indicating the period of the year, e.g., \"Spring

1966\") and also frequently numbered. . . . These

publications usually consist essentially of reading

matter but they may also be profusely illustrated and

may even consist mainly of pictorial matter. They may

also contain advertising material. \[Italics added.\]

From the above EN, we know two things about the publications

of this heading: 1) they are dated and regularly published in a

continuous series, and 2) essentially, they consist of \"reading

matter.\" The question is: Do advertising publications qualify as

\"reading matter\"?

In our view, the term \"reading matter\" suggests something

other than mere print that can be read. In other words, not all

printed text qualifies as reading matter in the context of

heading 4902, HTSUS. Such a broad meaning of the term would be

literally boundless. Thus, \"reading matter\" in the context of

this heading is appropriately limited.

Heading 4902, HTSUS, provides explicitly for newspapers,

journals, and periodicals, including professional journals and

periodicals. These are good examples of reading matter. The

tariff provision does not provide for advertising publications.

It merely provides that the newspapers, journals, and periodicals

of the heading may contain, in part, advertising material. The

EN uses the words \"may contain\" for advertising rather than

\"consist of\" which it uses for reading matter, reading matter

with illustration (even profuse illustration), or mainly

pictorial matter (which implies the presence of at least some

reading matter). The publications of this heading \"consist of\"

the foregoing; they do not \"consist of\" advertising. Moreover,

the plain and ordinary meaning of the term \"reading matter\"

suggests something other than advertising. While one can, and

does, read advertising, this fact does not make it \"reading

matter.\"

Furthermore, the publications at issue do not fit the EN\'s

description of periodicals. The EN\'s for heading 4902, HTSUS,

describe journals and periodicals as follows (EN\'s, HCDCS, Vol.

2, p. 694):

\(2\) Journals and other periodicals, issued weekly,

fortnightly, monthly, quarterly or half-yearly, either

in the form of newspapers or as paperbound

publications. They may be mainly devoted to the

publication of intelligence on subjects of a

specialized nature or sectional interest (e.g., legal,

medical, financial, commercial, fashion or sporting),

in which case they are frequently published by or for

the organizations of the interests concerned. Or they

may be of more general interest, such as the ordinary

fiction magazine. These include periodicals published

by or for named industrial concerns (e.g., motor car manufacturers) to
promote interest in their products,

staff journals normally having circulation only within

the industrial, etc., organizations concerned and

periodicals such as fashion magazines which may be

issued by a trader or an association for publicity

purposes. (Bolding in original; italics added.)

We note that advertising is not mentioned in the above EN; nor is

there anything in the text to suggest that advertising

publications are included. In addition, the language, \"\[journals

and other periodicals\] may be mainly devoted to the publication

of intelligence on subjects of a specialized nature or sectional

interest (e.g., legal, medical, financial, commercial, fashion or

sporting),\" does not reasonably suggest that advertising is

contemplated.

Regarding the home and nursery publication that contains

brief articles about home decorating, maintenance, and

improvements, we believe that it does not qualify as reading

matter or intelligence as contemplated in heading 4902, HTSUS,

for the reason that it is essentially advertising. The articles

generally discuss the kinds of products (for carrying out the

discussed activities) that are sold in the store. In addition,

the publication is published by or on behalf of the nursery,

indicating its advertising intent.

Based on the foregoing, we conclude that the bound home/real

estate publications and the bound product advertising

publications are advertising materials, not periodicals. The

language of heading 4911, HTSUS, indicates that advertising

materials are classified thereunder. It provides for \"\[o\]ther

printed matter . . .: \[t\]rade advertising material, commercial

catalogs and the like.\" (Italics added.) The EN\'s for heading

4911, HTSUS, explicitly state that advertising matter is included

under the heading. (See EN\'s, HCDCS, Vol. 2, p. 699.) While the

note also states that newspapers, periodicals, and journals,

whether or not containing advertising material, are excluded, we

have already determined that the sample home/real estate

publications and product advertising publications are not

periodicals within the meaning of heading 4902, HTSUS. Thus,

this exclusion is inapplicable. Finally, Legal Note 5 to Chapter

49 provides that publications essentially devoted to advertising

are not covered in heading 4901, HTSUS. It states the following:

\"Such publications are to be classified in heading 4911.\"

Bound Travel Guide

The bound travel guide contains timetables for ferry

transport, brief descriptions of ferry routes and destinations,

and numerous advertisements for hotels, resorts, restaurants, and

places of historical and geographical interest. Its primary

function is to publicize the schedules of the various ferries

serving the area, giving notice to the traveling public of times

of departure and arrival, prices, and other information (such as

capacity of the ships and whether autos are transported). In

this way, the publication serves a decidedly utilitarian

function. In addition, its numerous advertisements also serve

the tourist and traveller. It is published three times per year

to accommodate seasonal schedule changes.

The travel guide does not contain the kind of reading matter

that heading 4902, HTSUS, contemplates (as discussed above in the

previous section). Reading matter must be something more than

printed text that can be read; it must be more than mere

advertising. Likewise, reading matter must be more than a mere

travel guide that provides primarily a utilitarian function in

the form of published ferry schedules, timetables, and

advertisements.

Further, the EN\'s description of periodical, taken as a

whole, does not encompass bus, train, airplane, cruise ship, and

ferry schedules. Dating them and publishing them at regular

intervals does not transform them into periodicals of the kind

contemplated by the heading. Moreover, the words of text

describing the routes, destinations, and points of interest are

more in the nature of tourist promotional literature. The EN\'s

for heading 4911, HTSUS, explicitly provide that tourist

propaganda is included in that heading. (See EN\'s, HCDCS, Vol.

2, p. 699.) In addition, Legal Note 5 to Chapter 49 provides

that tourist promotional literature is a kind of advertising

classifiable in heading 4911, HTSUS.

Based on the foregoing, we conclude that the travel guide at

issue is not a periodical classifiable under heading 4902, HTSUS.

Because it is not more specifically described in any other

heading of the chapter, it is classifiable in heading 4911,

HTSUS, as other printed matter, specifically in subheading

4911.10.0080, HTSUS, as trade advertising material, commercial

catalogs, and the like, other.

II\. COUNTRY OF ORIGIN MARKING REQUIREMENTS FOR THE PRINTED

MATERIAL IMPORTED FROM CANADA TO BE DISTRIBUTED IN THE U.S.

IN THE MANNER DESCRIBED ABOVE

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. Part 134, Customs Regulations (19 CFR Part 134)

implements the country of origin marking requirements and

exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a \"good of a

NAFTA country\" are also 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) and the interim amendments to the Customs

Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3,

1994\) with corrections (59 Fed. Reg. 5082, February 3, 1994) and

T.D. 94-1 (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 134.1(g) of the interim regulations, defines a \"good

of a NAFTA country\" as an article for which the country of origin

is Canada, Mexico or the U.S. as determined under the NAFTA

Marking Rules. Since the printed material is printed in Canada,

we will assume for purposes of this ruling that the country of

origin of the imported articles is Canada. Thus, the NAFTA

marking rules must be applied in determining the appropriate

marking requirements of the imported articles.

In determining the country of origin marking requirements

for the imported printed material, it first must be determined

who is the ultimate purchaser in the U.S. of the imported

articles.

Section 134.1(d) of the interim regulations, provides that

the ultimate purchaser of a good of a NAFTA country is the last

person in the U.S. who purchases the good in the form in which it

was imported. If an imported article is to be sold at retail in

its imported form, the purchaser at retail is the ultimate

purchaser. If an imported article is to be distributed as a

gift, the recipient is the ultimate purchaser. However, if a

NAFTA article is imported and distributed as a gift, the ultimate

purchaser is the purchaser of the gift rather than the recipient.

See, Section 134.1(d)(4) of the interim regulations.

In this case either the printed material will be distributed

in the U.S. free of charge or it will be sold to the U.S.

consumer.

Ultimate Purchaser of the Imported Printed Material

1\. Imported Printed Material Distributed in The U.S. Free of

Charge

In accordance with section 134.1(d) of the interim

regulations, the ultimate purchasers of the printed material

which is imported from Canada, a NAFTA country, (assuming the

imported article is a good of Canada) and is to be distributed

free of charge in the U.S., as gifts or giveaways, are the U.S.

companies which pay Trans Continental West the fee for printing

the various advertisements in the publications. The U.S.

companies which pay for the printing of the advertisements are

the last persons in the U.S. to purchase the imported articles in

their imported condition and not the consumer who receives the

imported article free of charge, as a gift or giveaway.

Accordingly, the ultimate purchasers of the imported printed

material which is to be distributed free of charge are the U.S.

companies which pay Trans Continental West the fee to be

advertised in the publication.

2\. Imported Printed Material Sold in the U.S.\--Not Distributed

Free of Charge

With respect to the imported printed material which is to be

sold in the U.S., rather than distributed free of charge, the

ultimate purchasers of the imported articles in accordance with

section 134.1(d) are the U.S. consumers who purchase the printed

advertisement publications. The U.S. consumers who purchase the

advertisement publications are the last persons in the U.S. to

purchase the imported articles in their imported condition\--not

the U.S. companies who pay Trans Continental the fee for printing

the advertisements.

The last issue which must be examined is whether the

advertisement publications are excepted from country of origin

marking.

Are The Imported Printed Materials Excepted From Country of

Origin Marking

1\. Imported Printed Material Distributed Free of Charge

An article is excepted from marking under 19 U.S.C. 1304

(a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR

134.32(d)), if the marking of a container of such article will

reasonably indicate the origin of such article. Accordingly,

provided the outermost container is marked with the article\'s

origin, the printed material itself, which is to be distributed

free of charge, is excepted from country of origin marking.

Section 134.46, Customs Regulations (19 CFR 134.46),

generally requires that when a name of any U.S. city or locality

or the name of any foreign country other than the country or

locality in which the article was manufactured or produced,

appears 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

section is to prevent the possibility of misleading or deceiving

the ultimate purchaser as to the actual country of the imported

goods.

Although section 134.46-type references, appear on the

advertisement publications, the special marking requirements of

19 CFR 134.46 do not apply for marking the imported printed

materials, if they are excepted from marking pursuant to 19 CFR

134.32(d).

In this case, where the advertisement publications are

distributed free of charge to consumers in the U.S., the ultimate

purchasers of the publications are not the U.S. consumers who

receive the articles free of charge, but rather are the U.S.

companies who pay for the advertisements. Under these

circumstances, the U.S. references which appear on the printed

material itself would not mislead or deceive the ultimate

purchasers as to the article\'s actual origin given the fact that

the outermost containers will be marked with the article\'s actual

country of origin. Accordingly, the marking requirements under

19 CFR 134.46 will not be invoked when such references appear on

the advertisement publications which are to be distributed free

of charge in the manner described above, provided the outermost

containers which reach the ultimate purchasers in the U.S. are

marked with the article\'s actual country of origin, \"Canada\",

pursuant to a 19 CFR 134.32(d) marking exception.

2\. Imported Printed Material Sold to U.S. Consumers

Where the imported advertisement publications are to be sold

to consumers in the U.S., the U.S. consumers are the ultimate

purchases of the imported articles\--not the U.S. companies who

pay for the advertisements. Therefore, the imported

advertisement publications must be marked to indicate to the U.S.

consumers that \"Canada\" is the country of origin of the imported

publications. In this case, various U.S. references may appear

on the advertisement publications themselves, whether on the

front or back cover or on the advertisement pages themselves.

Thus, the special marking requirements of 19 CFR 134.46 are

triggered. This being the case, a strict application of section

134.46 would require that the country \"Canada\" be marked in close

proximity and at least in comparable size lettering preceded by

the words \"Made in\" anywhere a U.S. reference would appear on the

publications. However, we find that, to require such marking

would be overly burdensome to the importer since compliance would

be virtually impossible.

As previously stated, the purpose of section 134.46 is to

prevent the possibility of misleading or deceiving the ultimate

purchaser as to the actual country of the imported goods. Thus,

provided the printed material is conspicuously marked in such a

manner as to clearly indicate to the U.S. consumer prior to

purchase that \"Canada\" is the actual country of origin of the

article the purpose of section 134.46 would be satisfied.

A country of origin marking is considered to be

conspicuous, if the marking is easy to find and read upon a

casual examination of the article. Review of the sample travel

guide indicates that the country of origin marking \"Printed in

Canada\" appears on the back cover near the lower left-hand corner

of the guide in black lettering approximately 5 points. We find

that this country of origin marking does not satisfy the

conspicuousness requirement of section 134.46 and is not an

acceptable country of origin marking for the travel guide. The

back cover is not a location where a U.S. consumer would look or

expect to find the country of origin of the publication. Also,

we note that, aside from the country of origin marking, there is

no other information on the back cover. With respect to the size

of the lettering in this case (5 points), we find that it is

acceptable in that it is easy to read.

However, the front cover of the travel guide in our opinion

would be a conspicuous location to mark the travel guide with the

country of origin marking \"Printed in Canada\". In HQ 731663

(July 18, 1989) Customs stated that with respect to books:

Because retail purchasers could reasonably expect to find

all the pertinent publication, printing and copyright

information related to a book on either the front or back

of the title page and could therefore, look at the title

page if they were confused by information appearing

elsewhere, an importer satisfies 19 CFR 134.46 if the

country of origin is placed on the front or back of the

title page and otherwise complies with the requirements

of 19 CFR 134.46.

Even though the travel guide is not a published book, we

nevertheless, believe that the front cover is similar to the

title page of a book. Individuals would normally look at the

front cover to find information about the travel guide. Also,

inasmuch as the front cover indicates to the individual purchaser

the price of the travel guide and the areas covered in the guide,

it is reasonable to believe that this would be a location where

the individual purchaser would first look for information about

the travel guide.

HOLDING:

The paper publications at issue - the unbound advertising

publications, the bound home and real estate publications, the

bound product advertising publications, and the bound travel

guide - are classifiable in subheading 4911.10.0080, HTSUS. The

applicable duty rate is \"Free.\"

Assuming that the imported advertisement publications are

goods of Canada, a NAFTA country, and are to be imported into the

U.S. in the manner described above, the ultimate purchaser of the

imported publications that are to be distributed in the U.S. free

of charge are the U.S. companies who pay Trans Continental West

the fee for printing the publications and not the consumers who

receive the imported articles free of charge. Thus, provided the

outermost containers are marked to indicate \"Canada\" as the

origin of the imported advertisement publications pursuant to a

19 CFR 134.32(d) marking exception, the imported publications

themselves are excepted from country of origin marking, and the

special marking requirements of 19 CFR 134.46 are not invoked by

the U.S. references which appear on the publications.

The ultimate purchasers of the imported advertisement

publications which are to be sold in the U.S. in the manner

described above are the U.S. consumers who purchase the

publications not the U.S. companies which pay for the printing of

the publications. Accordingly, these advertisement publications

must be marked to indicate \"Canada\" as the origin of the imported

publications. Marking the publications \"Printed in Canada\" on

the back cover is not an acceptable country of origin marking for

the imported advertisement publications for the reasons set forth

above.

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 Customs officer handling the

transaction.

Sincerely,

John Durant, Director

Commercial Rulings Division