HQ 0734154 - Country of Origin Marking - Stainless Steel Silver Plated Flatware; Ultimate Purchaser; Container Marking; 19 CFR 134.32(d); 19 CFR 134.34; 19 CFR 134.43; C.S.D. 80-44 Distinguished. - United States International Trade Commision Rulings

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HQ 734154
August 19, 1991

MAR-2-05 CO:R:C:V 734154 NL

CATEGORY: MARKING

Michael K. Tomenga, Esq.
McKenna & Cuneo
1575 Eye Street, N.W.
Washington, D.C. 20005

RE: Country of Origin Marking - Stainless Steel Silver Plated Flatware; Ultimate Purchaser; Container Marking; 19 CFR 134.32(d); 19 CFR 134.34; 19 CFR 134.43; C.S.D. 80-44 Distinguished.

Dear Mr. Tomenga:

This is in response to your letter of May 2, 1991, in which you request a ruling concerning the country of origin marking requirements applicable to certain stainless steel flatware imported by your client, World Tableware International.

FACTS:

World Tableware imports stainless steel flatware for sale to hotels, restaurants, and institutions. Its flatware is not sold at retail outlets. At importation the utensils are packed in immediate containers which hold three dozen individual utensils of the same type (e.g., fork, knife, or spoon). Twelve immediate containers are packed in a master shipping carton. Both the immediate container and the master carton are marked with the flatware's country of origin. In addition, each container will bear artwork indicating that World Tableware is the distributor of the flatware.

After importation the flatware is sent for silver plating to a company under contract to World Tableware. The plated flatware is then repacked in its original containers and returned to World Tableware for distribution. You represent that if it becomes necessary to open an immediate container to fill an order for more than an even multiple of three dozen pieces, World Tableware would pack the extra dozen pieces separately in marked containers kept on hand for this purpose.

ISSUE:

May the flatware be excepted from individual country of origin marking based upon the marking of its immediate and master containers?

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. Part 134, Customs Regulations, implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Special marking requirements for knives and forks are set forth at 19 CFR 134.43(a), specifying that those and certain other articles are to be marked by means of die stamping, cast- in-mold lettering, etching, engraving, or by affixing metal plates to the article. However, these requirements have been construed to be subject to the general exception from individual country of origin marking provided at 19 U.S.C. 1304(a)(3)(D), which permits an article to be excepted from marking if the marking of its container will reasonably indicate its country of origin. The exception is set forth in the regulations at 19 CFR 134.32(d). See C.S.D. 80-44. Generally, in order to approve this exception Customs officials must be satisfied that the imported article will, in all foreseeable circumstances, reach the ultimate purchaser in its properly marked, unopened container.

In C.S.D. 80-44 Customs determined that the marking of retail "presentation packs" containing silver plated flatware would not qualify the flatware for the exception for marked containers, finding that the purchaser at retail would be likely to open the presentation pack to examine the merchandise, thereby making it conceivable that the unmarked flatware would be sold without its marked container.

Under the facts presented here, this rationale is inapplicable. The ultimate purchasers of World Tableware's flatware are restaurants and institutions who would not be likely to remove the packaging without purchasing the merchandise. On the contrary, we find that such ultimate purchasers will receive the flatware in properly marked bulk containers. Based upon your representations that there are no retail purchasers, and that special marked containers will be set aside for orders in less than even dozens, we foresee no circumstances in which the flatware will reach ultimate purchasers outside their marked containers. However, because the flatware will be removed from its marked containers after importation for purposes of plating and will be repacked in the U.S., an exception under 19 CFR 134.32(d) must be approved by the district director pursuant to 19 CFR 134.34.

Under the procedures of 19 CFR 134.34, an article may become eligible for the exception upon satisfaction of such requirements of certification, verification, submission of samples, or other requirements as the district director may, in his discretion, determine are necessary to assure that the article will be properly marked after repacking in the U.S. Here, provided the district director is provided with such assurances of compliance as he may require, we are of the opinion that the flatware may be eligible pursuant to 19 CFR 134.34 for the exception provided at 19 CFR 134.32(d).

HOLDING:

Subject to such requirements and procedures as the district director may require under 19 CFR 134.34, the imported flatware which is plated and then placed again in its containers may be excepted from the special marking requirements of 19 CFR 134.43, as the marked containers will satisfy the requirements of 19 CFR 134.32(d).

Sincerely,

John Durant
Director, Commercial

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