NY K87909 - COUNTRY OF ORIGIN MARKING OF IMPORTED INDUSTRIAL METALWORKING TOOLS - United States International Trade Commision Rulings

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NY K87909

August 17, 2004

MAR-2 RR:NC:1:104 K87909

CATEGORY: MARKING

Mr. Yiota G. Souras
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED INDUSTRIAL METALWORKING TOOLS

Dear Mr. Souras:

This is in response to your letter on behalf of Valenite LLC dated July 15, 2004 requesting a marking ruling. Valenite LLC wishes to know whether its proposed method of marking a container with the country of origin in lieu of marking the article itself is an acceptable country of origin marking. A marked sample container was not submitted with your letter for review. However, a picture of a representative sample of the tools, both in and out of its respective container, was submitted. Also included was a picture showing a sealed container to which is affixed a non-removable label bearing a conspicuous, legible country of origin statement. Various Valenite catalogs were also submitted.

Your client, Valenite LLC, imports a variety of non-rotary and rotary metalworking tools (e.g., for turning, milling, drilling, parting, grooving and boring). Valenite LLC is a wholly-owned subsidiary of Sandvik Company. Instead of marking each individual rotary tool by die-stamping, etching, engraving or similar type marking, Valenite LLC proposes to seal each individual container, in which the tool is imported, with a non-removable stick-on label which is attached to both the top and bottom sections of the container where the sections interlock. This label, which bears the country of origin marking, is made of heavy-duty sealing tape. The firm claims that this is an effective seal as the container cannot be opened unless the label is torn. Tools are packaged in substantial containers which can also serve as storage for the tools during their lives. These molded plastic cases or tubes are specially designed to hold individual tools.

Valenite LLC imports the tools to its central warehouse. Sales of these tools are primarily made to direct accounts. A small percentage of the tools are sold through distributors. The tools are neither sold to individual consumers through mass retail channels nor do they appear on retail store shelves.

The issue of country of origin marking on this merchandise was previously addressed in NY A80675 dated March 21, 1996 (non-rotary metalworking tools) and HQ 560674 dated January 9, 1998 (rotary metalworking tools). The rulings held that the metalworking tools imported by Sandvik Coromant in sealed containers marked with a non-removable label bearing a conspicuous country of origin statement satisfied the requirements of the country of origin marking law. Valenite LLC is requesting a ruling which combines the two situations described in the above cited rulings so that it can utilize the same marking procedure used by its sister company, Sandvik Coromant. The marking proposed by your client differs from the approved Sandvik Coromant marking described in the above cited rulings only in that the containers will bear Valenite LLC’s brand name and product information rather than that of Coromant.

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. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article 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. In this case, the ultimate purchasers of the industrial metalworking tools are industrial companies who, according to your firm’s April 27, 2004 letter, “ know the quality, design, and origin of the tools they are purchasing ”.

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, if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the article by viewing the container in which it is packaged, the article would be excepted from marking under this provision.

Section 134.42, Customs Regulations (19 CFR 134.42) provides that the marking of certain articles shall be by specific methods as may be prescribed by the Commissioner of Customs. Pursuant to this authority, in T.D. 74-122 and T.D. 84-214, special marking requirements for imported rotary metal cutting tools were imposed. T.D. 74-122 sets forth definite methods of marking rotary metal cutting tools while T.D. 84-214 limits those situations in which the marking of the container, in lieu of the article itself, is permitted.

T.D. 84-214 states that rotary metal cutting tools would be excepted from individual marking if (1) they are imported in substantial tubes or containers which are marked to indicate the origin of the tools inside and (2) it can be shown to the satisfaction of Customs officers at the port of entry that the tools are virtually certain to reach the ultimate purchaser in the marked unopened tubes or containers. From information submitted, it appears the containers being used to house these tools are substantial in nature. Tools are delivered to the ultimate purchaser either directly from Valenite LLC’s warehouse or through distributors. The containers need not be discarded after purchase but rather can be used to store the tools for the life of the tools. The labels, applied to these containers at the junctures where the top and bottom sections interlock, prevent the containers from being opened unless the labels are torn. As a torn label will alert the ultimate purchaser to the fact that the container has been opened, it is highly unlikely that a container will be opened for any type of repacking. The containers are of a kind that are virtually certain to reach ultimate purchasers unopened.

This office sees no reason to dispute the reasoning put forth in NY A80675 and HQ 560674. Extending the rationale of these two rulings to Valenite LLC’s importations of non-rotary and rotary metalworking tools, it follows that the firm’s industrial metalworking tools (non-rotary and rotary) which are 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). In addition, the rotary metal cutting tools are excepted from the individual marking requirements of T.D. 84-214. Accordingly, marking the container in which the industrial metalworking tool 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 industrial metalworking tool 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 Robert Losche at 646-733-3011.

Sincerely,

Robert B. Swierupski
Director,

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