NY I80688 - THE COUNTRY OF ORIGIN MARKING OF A TRENCHING SHOVEL FROM SPAIN. - United States International Trade Commision Rulings

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NY I80688

April 15, 2002

MAR-2 RR:NC:1:118 I80688

CATEGORY: MARKING

Mr. Mike Clewell
Corona Clipper Inc.
1540 East Sixth Street
Corona, California 92879

RE: THE COUNTRY OF ORIGIN MARKING OF A TRENCHING SHOVEL FROM SPAIN.

Dear Mr. Clewell:

This is in response to your letter dated March 29, 2002, requesting a ruling on whether the proposed marking "Spain" and “Assembled in the USA” are acceptable country of origin markings for an imported trenching shovel. A marked sample was submitted with your letter for review.

Your intention is to have the designation “Spain” die sunk into the head of the 5-inch trenching shovel, model SF 74005. The head is made in Spain. Furthermore, you intend to mark the handle, which is made in the United States, with a label designation of ASSEMBLED IN THE USA. Additionally, various product information is printed on the label including the Corona Clipper Inc. address, located in California.

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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent
so that it will remain on the article until it reaches the ultimate purchaser, unless deliberately removed, is acceptable.

Your proposed marking of the imported trenching shovel head, as described above, is conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. However, it is not an acceptable country of origin marking.

In T.D. 55033(5) Customs addressed the marking requirements of various articles including shovels. It was held that "Tools such as ensilage forks, hay forks, manure forks, rakes, hoes, trowels, shovels, spades and scoops imported without handles affixed ... must be legibly and conspicuously marked 'head made in (country of origin)' or 'blade made in (country of origin)' as the case may be." Plainly, it is intended that the marking remain on the implement after its handle has been attached, such that the ultimate purchaser, the user of the finished tool, may be apprised of the country of origin of its essential component, its head, fork, or blade.

Products of United States origin, such as the shovel handle, are not subject to the country of origin marking requirements set forth in 19 U.S.C. §1304 because they are not considered articles of foreign origin. Accordingly, the indication of the United States as the origin of the handle is not required. Approval of markings such as "Made in the USA" is within the authority of the Federal Trade Commission (FTC). Customs is unable to rule as to whether the use of the phrase "Made in USA" is acceptable and we suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of the proposed marking.

The marking on the label “Assembled in USA” is not acceptable. Section 134.43(e), Customs Regulations (19 C.F.R. §134.43(e)), authorizes the use of the marking “Assembled in” only when the country of origin is the country of final assembly. Since Customs has addressed the origin marking requirements of shovels and requires that both the shovel heads and handles (if foreign made) be marked to indicate their origin, the country of final assembly, in this case, is not the country of origin of the finished shovel. Therefore, the language on the label “Assembled in USA” is not proper and must be removed from the label.

Customs has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Therefore, in cases where the name of a location in the United States or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appears on an imported article or its container, section 134.46, Customs Regulations (19 C.F.R. §134.46), provides that 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. The purpose of this
section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported good.

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 Kathy Campanelli at 646-733-3021.

Sincerely,

Robert B. Swierupski
Director,

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