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NY F81943





January 14, 2000

MAR-2 RR:NC:N1:113 F81943

CATEGORY: MARKING

Ms. Marilyn-Joy Cerny
Cerny Associates
301 Fields Lane
P.O. Box 102
Brewster, NY 10509

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED HOLLOWARE

Dear Ms. Cerny:

This is in response to your letter dated January 6, 2000, on behalf of Delco International, Ltd., requesting a ruling on whether the proposed method of marking the container in which the holloware is imported with the country of origin in lieu of marking the article itself is an acceptable country of origin marking for the imported holloware. A marked sample container was submitted with your letter for review. It is marked:

NO. PH-203
IBM # 1402030
DESCRIPTION : 10 OZ
COVERED SERVER
1 PC
KOREA

The holloware includes trays, breadbaskets, creamers, sugars, servers, gravy boats, pitchers, coffee servers, teapots, wine buckets, etc.

Delco is a major importer of flatware, chinaware and holloware expressly and exclusively designed for institutional buyers, such as restaurants, hotels, airlines, nursing homes, and hospitals. The holloware is made of stainless steel or silver-plated steel. Currently, each of these articles is individually marked with the country of origin, Korea. In addition, the immediate cardboard container used to package each piece and the outermost shipping container are marked with the country of origin. Delco sells the imported holloware either directly to institutional customers or to distributors, such as restaurant supply companies, who sell the merchandise exclusively to food service institutions.

The holloware is packaged overseas in immediate individual boxes. The immediate containers are then packaged overseas in master shipping cartons holding multiples of the same type of items. Both the immediate containers and master shipping cartons are marked with the country of origin. After importation, Delco ships the items to its customers or distributors. In certain instances, Delco opens the outermost shipping container to fulfill orders requiring less than a full container. Delco states that such shipments are then re-packaged in properly marked, intermediate-sized containers. In all instances, the merchandise is shipped in individual boxes and an outermost container, all marked with the country of origin.

In addition, Delco shows some of the items prospective buyers for purposes of soliciting sales. It is stated that these articles will not be sold, distributed or given away to U.S. companies.

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 C.F.R. Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304.

Section 134.1(d), Customs Regulations, defines “ultimate purchaser” as generally the last person in the U.S. who will receive the article in the form in which it was imported. It is contended that the institutional buyers are the ultimate purchasers of the holloware, and since this merchandise will be received by the institutional buyers in properly marked containers, the holloware is not required to be individually marked.

Pursuant to 19 U.S.C. §1304(a)(3)(D) and 19 C.F.R. §134.32(d), an exception from individual marking is applicable where the marking of a container of such article will reasonably indicate the origin of the article. This exception is normally applied 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 the original unopened marked container. Relevant factors regarding whether an article is likely to remain in its original container include the chain of distribution, the type of container, and the nature of the article.

The facts of this case are similar to HRL 559398, where Customs excepted flatware and chinaware from individual country of origin marking because the articles were sold to hotels, restaurants, and institutions, and not at retail outlets. The utensils were also packed in immediate marked containers. The master shipping cartons holding 30-50 immediate containers were also marked. Customs held that since there were no retail purchasers and all of the imported flatware and chinaware were packed in properly marked bulk containers, the flatware and chinaware were excepted from individual country of origin marking provided the Customs officials at the port of entry were satisfied that the ultimate purchasers received the flatware and chinaware in the original unopened properly marked outer container.

The holloware will be sold to institutional users either directly or through distributors who sell to institutional users. Therefore, since the institutional users are the ultimate purchasers of the holloware, these articles may be excepted from individual country of origin marking pursuant to 19 C.F.R. §134.32(d) as long as Customs officials at the port of entry are satisfied that the ultimate purchasers receive the holloware in the original unopened properly marked outer container. Furthermore, In those instances where the outer boxes are opened, the requirements of 19 C.F.R. §134.26 must be satisfied.

Section 134.26(a), Customs Regulations {19 C.F.R. §134.26(a)}, provides in pertinent part that:

If an article subject to these requirements is intended to be repacked in retail containers (e.g., blister packs) after its release from Customs custody, or if the port director having custody of the article, has reason to believe such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part; or (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements.

Paragraph (d) of that section specifies the notice that shall be given to the subsequent purchaser or repacker. Accordingly, where Delco may open the outer container in order to fulfill smaller orders, Delco, as the importer, shall file a certification with the port director as indicated in 19 C.F.R. §134.26(a), and shall provide a notice to its distributors informing them of the marking requirements. If the Customs officials at the port of entry are satisfied that the ultimate purchasers (i.e., the institutional buyers) receive the holloware in properly marked containers, the holloware may be excepted from individual marking pursuant to 19 C.F.R. §134.32(d).

In regard to the articles which Delco intends to show to prospective buyers for the purposes of soliciting orders, and which will not be sold, distributed, or given away, they may be excepted from marking pursuant to 19 C.F.R. §134.32(d) since Delco is the ultimate purchaser, and, as the importer, Delco receives the holloware in properly marked containers.

Holloware that is imported in containers that are marked in the manner described above, are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the holloware is imported and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for the imported holloware provided the port director is satisfied that the article will remain in the marked container until it reaches the ultimate purchaser.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Smyth at 212-637-7008.

Sincerely,

Robert B. Swierupski
Director

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