HQ 563187 - Country of origin marking requirements applicable to imported disposable polypropylene airline pillow cases, head rest covers, crew sheets and cart toppers sold exclusively to airlines for in-flight use by passengers and crew; HRL 734635 - United States International Trade Commision Rulings

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HQ 563187

January 31, 2005

CATEGORY: MARKING

Mr. Ken Kane
White Knight Engineered Products, Inc.
7422 Carmel Executive Park
Suite 310
Charlotte, NC 28226

RE: Country of origin marking requirements applicable to imported disposable polypropylene airline pillow cases, head rest covers, crew sheets and cart toppers sold exclusively to airlines for in-flight use by passengers and crew; HRL 734635

Dear Mr. Kane:

This is in response to your facsimilite dated January 14, 2005, which requests a binding ruling regarding the country of origin marking requirements applicable to imported disposable polypropylene airline pillow cases, head rest covers, crew sheets and cart toppers.

FACTS:

The disposable polypropylene airline pillow cases, head rest covers, crew sheets and cart toppers washcloths will be imported into the U.S. from China, in cartons marked with the White Knight Engineered Products brand name, fiber content and country of origin. The individual items are not marked. The pillow cases, head rest covers and cart toppers are packed 1,000 to a case, and the crew sheets are packed 100 to a case.

You state that the items are sold only to the airlines in whole cases, never in partial cases. During a telephone conversation, you confirmed that the articles are purchased by the airlines solely for use by passengers and crew during flight, and are not resold in any manner. You state that your firm wishes to mark only the outermost bulk packaging with the country of origin.

ISSUE:

Whether marking the outermost container of disposable polypropylene airline pillow cases, head rest covers, crew sheets and cart toppers sold to airlines for use by passengers and crew in flight is acceptable for purposes of 19 U.S.C. 1304 and 19 CFR Part 134.

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. Congressional intent in enacting 19 U.S.C. 1304 was 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 are the product. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Among the exceptions to country of origin marking is 19 U.S.C. 1304(a)(3)(D), also provided for in section 134.32(d), Customs Regulations (19 CFR 134.32(d)). That section provides that articles for which the marking of their containers will reasonably indicate the country of origin of the articles may be excepted from country of origin marking. However, for the exception to apply Customs must be satisfied that the articles will reach the "ultimate purchaser" in the original, properly marked containers in which the articles were imported. Section 134.1(d), Customs Regulations (19 CFR 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.

For what purpose and in what manner imported goods are to be used has been the focus of several marking decisions which are relevant in the instant case. When imported goods are purchased by an employer for use exclusively at work by its employees, the imported merchandise has been excepted from individual country of origin marking. See Headquarters Ruling Letter (HRL) 734304, dated January 28, 1992 (disposable industrial work coveralls distributed free of charge to employees at an industrial plant (the ultimate purchaser) for use on the job are excepted from individual marking); and HRL 732793, dated December 20, 1989 (employers are the ultimate purchasers of industrial work gloves distributed free of charge to employees on the job for use at work; such gloves are excepted from individual marking). Similarly, imported goods purchased by hospitals for use exclusively on the premises by staff or patients have also been excepted from individual marking. See, HRL 730945, dated August 11, 1988 (hospitals are the ultimate purchasers of imported patient identification bracelets; such items are excepted from individual marking); HRL 715640, dated June 16, 1981) (hospitals are the ultimate purchasers of imported disposable paper shoe covers, head covers, drape sheets, gowns, towels and other similar products, none of which have to be individually marked to indicate country of origin); HRL 723745, dated February 6, 1984 (hospitals are the ultimate purchasers of imported surgical masks; such items do not have to be individually marked); and HRL 730840, dated January 12, 1988 (hospitals are the ultimate purchasers of imported surgical gloves; such gloves are excepted from individual marking).

With regard to articles purchased for use by airlines, in HRL 734524, dated July 30, 1992, Customs reasoned that the ultimate purchaser frozen food meals would be the airline rather than the passenger, Customs found that such frozen meals would probably be excepted from individual marking so long as the ultimate purchaser (the airline) received the meals in bulk with proper marking on the outermost containers in which they were imported. Moreover, in Legal Determination 79-0382 (HRL 710483, dated July 17, 1979), Customs found that the ultimate purchaser was not necessarily the ultimate user or consumer. In that case, dinnerware was imported for sale by the importer to a company that resold it to an airline company for its use in serving in- flight meals. The airline company received the dinnerware in the original, unopened and properly marked bulk containers. There Customs found that the ultimate purchaser was the airline company, not the airline passenger, and the dinnerware was excepted from marking as provided for in 19 U.S.C. 1304(a)(3)(D). However under the facts presented in HRL 724335, dated January 16, 1984, Customs found that airline passengers were the ultimate purchasers of plastic cups and glasses of durable nature which the passengers could keep. Accordingly, the cups and glasses had to be marked with country of origin. The distinguishing factor between these two decisions which was determinative as to whether the imported goods should be marked was the fact that in the former decision the passengers could not take the goods with them for use elsewhere, and in the latter decision they could.

In a very similar case to the present situation, HRL 734635, dated December 17, 1992, airline washcloths were held to be excepted from individual marking. Customs found that since the washcloths remained the property of the airlines and the passengers did not keep or remove them from the airplane, the airline was the ultimate purchaser. Therefore, Customs held that if the airline received the washcloths in properly marked containers, the individual washcloths did not have be marked.

Like imported items purchased by employers and distributed to their employees for use only on work premises and like the various imported items used by hospital staff and patients while on hospital premises, the disposable polypropylene airline pillow cases, head rest covers, crew sheets and cart toppers are purchased by the airline only for passenger and/crew use on the airplane during flight. In none of these situations is the imported merchandise ever otherwise sold or intended for retention and use other than on site or in flight. Accordingly, it is our opinion that the ultimate purchaser of the subject pillow cases, head rest covers, crew sheets and cart toppers is the airline, and not the airline passenger. Therefore, so long as the airline continues to receive these items in properly marked containers, the individual articles may be excepted from country of origin marking pursuant to 19 CFR 134.32(d).

HOLDING:

Based on the information provided, for country of origin marking purposes, the ultimate purchaser of disposable polypropylene pillow cases, head rest covers, crew sheets and cart toppers airline is the airline and not the airline passenger. Accordingly, pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) the airline pillow cases, head rest covers, crew sheets and cart toppers are excepted from individual country of origin marking so long as the ultimate purchaser, the airline, receives the washcloths in containers which are properly marked with the country of origin.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs and Border Protection officer handling the transaction.

Sincerely,

Myles B. Harmon

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