HQ 561831 - Country of origin marking for stainless steel flatware; container marking; 19 CFR 134.32(d) - United States International Trade Commision Rulings

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HQ 561831

August 15, 2000

MAR-2-05 RR:CR:SM 561831 MLR

CATEGORY: MARKING

James G. Cook, Esq.
Black and Cook
Suite 2109
2 Bloor Street West
Toronto M4W 3E2
Canada

RE: Country of origin marking for stainless steel flatware; container marking; 19 CFR 134.32(d)

Dear Mr. Cook:

This is in reference to your letter of July 20, 2000, requesting a ruling on behalf of Trupco Inc. (“Trupco”), concerning the country of origin marking requirements for imported stainless steel flatware. A sample was submitted with your request.

FACTS:

It is stated that Trupco imports stainless steel flatware manufactured in China into Canada and exports it for resale to the U.S. Trupco is only a wholesaler and resells all of its flatware to retailers for subsequent sale to customers in the U.S. The flatware will be imported in flat cardboard box packages consisting of a 20 piece service for four of flatware (a sample is submitted). The box has a large hole in the front in order to view a place setting consisting of a salad fork, place fork, place knife, place spoon, and teaspoon. The rest of the flatware is packaged in a smaller box and placed inside the flat cardboard box. The sides of the flat cardboard box are sealed closed fairly securely.

On the left side of the box is a description that the flatware is stainless steel, rust resistant etc. (the right side has the same information in French). The bottom side contains the UPC symbol, Trupco’s Canadian address to one side of the UPC symbol, and “Made in China, Fabrique en Chine” on the left side of the UPC symbol. Both the Canadian address and the country of origin are in the same size print. The back side of the box, opposite the open portion, contains information about the stainless steel. The flatware itself has no country of origin marking. Each master carton containing approximately four flatware packages, as described above, will also be marked “Made in China.”

ISSUE:

Whether each flatware piece may be excepted from individual country of origin marking.

LAW AND ANALYSIS:

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 134.1(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. In this case, the purchasers of the 20 piece flatware service at retail will be the ultimate purchasers in the U.S.

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). 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.

However, in Headquarters Ruling Letter (HRL) 735181 dated May 17, 1994, Customs held that ulu knives may be excepted from the special marking requirements of 19 CFR 134.43(a), where the marking on the ulu knives= container will reasonably indicate the origin of the article. It was determined that if the knives were sold only in retail packaging, the country of origin marking on the package would be sufficient in lieu of marking the blade itself. See also 561116 dated October 15, 1998; and HRL 733301 dated August 9, 1990 (If boxes are properly marked with the country of origin of the knives and wooden storage box, the articles themselves may be excepted from marking under 19 U.S.C. 1304(a)(3)(D)).

In this case, the flatware is stainless steel and not silver-plated as in C.S.D. 80-44. Unlike finer flatware, we do not foresee the ultimate purchaser opening the box to examine the flatware, especially since the front of the box already contains a large hole in order to see all five sample pieces of the flatware. The sides of the box are also sealed closed fairly securely to prevent opening the box. Furthermore, it is stated that the flatware will not be repacked after importation and will be imported in the packages containing the country of origin as they are sold to the ultimate purchaser in the U.S.

We also note that the requirements of 19 CFR 134.46 are satisfied since the Canadian address is on the same side and surface as the country of origin marking, and both are in the same size print. Therefore, it is our opinion that the flatware may be excepted from individual country of origin marking provided the Customs officials at the port of entry are satisfied that the ultimate purchasers will receive the flatware in the original unopened properly marked packages.

HOLDING:

Based on the facts and sample presented, the consumer at retail will be the ultimate purchasers of the imported flatware service. Therefore, the flatware pieces themselves may be excepted from individual country of origin marking pursuant to 19 CFR 134.32(d) as long as Customs officials at the port of entry are satisfied that the ultimate purchasers receive the flatware pieces in properly marked containers.

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

Sincerely,

John Durant, Director

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