HQ 0732262 - Country of origin marking of imported end mill arbors - United States International Trade Commision Rulings

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HQ 732262
March 2, 1990

MAR-2-05 CO:R:C:V 732262 KG

CATEGORY: MARKING

John H. Heinrich
District Director
300 South Ferry Street
Terminal Island
San Pedro, California 90731

RE: Country of origin marking of imported end mill arbors

Dear Mr. Heinrich:

This is in response to your memorandum of March 20, 1989, (MAR-1-LA:C: TTBV AKB), requesting internal advice concerning the country of origin marking of imported end mill arbors. We regret the delay in responding to your inquiry.

FACTS:

Tool holders are the units to which various types of replaceable cutting edges are mounted. This case involves an end mill arbor, which is a type of tool holder. An arbor is a bar, shaft or axis that holds, turns or supports rotating cutting tools. An end mill arbor is fitted into the chunk or spindle to perform necessary milling operations on steel or other metal workpieces.

The imported end mill arbors are unmarked. They are packaged in individual white cardboard boxes with a slip-off lid. The boxes are not shrink wrapped or encased in plastic film or sealed. The top of the box is marked with a label indicating the size of the tool holder and its country of origin.

ISSUE:

Whether the imported end mill arbors which have the country of origin of the arbors marked on an unsealed cardboard box satisfies section 304 of the Tariff Act of 1930, as amended.

LAW AND ANALYSIS:

Section 304 of the 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. The Court of International Trade stated in Koru North America v. United States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297, 302 C.A.D. 104 (1940), where the court stated that: "Congress intended 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.11, Customs Regulations (19 CFR 134.11), states that containers of articles excepted from marking shall be marked with the name of the country of origin of the article unless the container is also excepted from marking. This means that if an article itself is excepted from marking, the container must be marked with the country of origin of the article unless the container is also specifically excepted by a provision in 19 U.S.C. 1304 or 19 CFR Part 134.

In this instance, the article may be entitled to an exception from marking pursuant to section 304(a)(3)(D) of the Tariff Act of 1930, as amended (19 U.S.C. 1304(a)(3)(D)), which excepts from individual marking requirements any article for which the marking of the container will reasonably indicate the origin of the article. Section 134.32(d), Customs Regulations (19 CFR 134.32(d)), reiterates the exception contained in 19 U.S.C. 1304(a)(3)(D). This exception applies in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser will receive it in its original unopened marked container. See HQ 731768 (December 8, 1988).

In this particular case, the imported article is packaged in an unsealed cardboard box. There is no plastic encasing the packaging and it is not shrink-wrapped. It also appears that the cardboard boxes are plain; the boxes have no picture on them, design or information except for the size of the tool. This is another indication that the product would not necessarily remain within the box until the time of sale. Essentially, there is no way for Customs Officials to be assured that the ultimate purchaser will receive the imported article in this cardboard box. Therefore, the imported end mill arbors are not excepted from marking the country of origin on the imported article itself.

Since the imported article is not excepted from marking, 19 CFR 134.11 would not permit marking the country of origin of the imported end mill arbors on the unsealed cardboard box instead of marking the imported end mill arbors itself.

HOLDING:

The imported end mill arbors are required to be marked with their country of origin on the imported end mill arbors. Marking the country of origin of the imported end mill arbors on the unsealed cardboard box does not satisfy the requirements of 19 U.S.C. 1304 or 19 CFR Part 134.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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