HQ W479898 - Binding Ruling Request for marking requirements of utility knives; admissibility; Switchblade Knife Act, 15 U.S.C. § 1241, et seq. - United States International Trade Commision Rulings

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U.S. Department of Homeland Security Washington, DC 20229

U.S. Customs and
Border Protection

HQ W479898

June 29, 2007

ENF-4-02-OT:RR:BSTC:IPR 479898 AML

CATEGORY: MARKING RESTRICTED MERCHANDISE

Mr. Troy Clarke
CBT International, Inc., CHB
110 West Ocean Boulevard
Suite 728
Long Beach, CA 90802

RE: Binding Ruling Request for marking requirements of utility knives; admissibility; Switchblade Knife Act, 15 U.S.C. § 1241, et seq.

Dear Mr. Clarke,

This is in response to your request dated June 2, 2006, on behalf of Alltrade Tools, LLC, for a binding ruling regarding the proper method of marking for country of origin purposes, viz. whether the blades of utility knives are required by regulation to be marked. The request, addressed to the National Commodity Specialist Division (NCSD), was forwarded to this office for reply because of questions concerning the admissibility of knives vis-à-vis the Switchblade Knife Act, 15 U.S.C. § 1241, et seq., as implemented by the Customs and Border Protection (CBP) Regulations at 19 CFR §§ 12.95 – 12.103. Samples were provided in retail packages for our examination.

FACTS:

We describe the samples provided as follows:

The “Quick Change Folding Utility Knife” (model # 150014) retail package contains two folding utility knives in sizes, “Mini” and “Large.” The handle of the folded “Mini” measures approximately 2 ½ inches and it measures 3 ¾ inches when extended. The “blade” on the “Mini”, which resembles a utility/dry wall/“razor knife” blade, is ½ inch long. The Large model has a handle that is approximately 4 inches in length. When unfolded, the large model is approximately 6 ¼ inches in length. The “blade” of the article, which appears to be a standard utility/dry wall/“razor knife” blade, is approximately 7/8 of an inch long. Both models are folding knives that have a slide button on the side, which, when pressed, allows the knife to be unfolded by the user grasping the extension and pulling it from the handle, similar to the method of opening a jackknife.

The “Quick Release Folding Knife” (model # 150017) retail package contains a drywall or utility knife of unique design. The body of the article is approximately 6 inches in length. The “blade” of the article which appears to be a standard utility/dry wall/“razor knife” blade, is approximately 1 inch long when fully extended. The blade is extended, like most other utility knives, by the application of pressure onto a button that can be released into grooves that hold the blade at desired degrees of partial extension (approximately ¼ and ½ of an inch) or full extension. The knife has a separate button which, when depressed, folds the body of the knife in half and exposes a chamber in which replacements utility blades for the knife are stored.

The “Squeeze Knife”™ has the appearance of a single utility knife and is approximately 6 ½ inches in length. The “blade” of the article which appears to be a standard utility/dry wall/“razor knife” blade, is approximately 1 inch long when fully extended. The “blade” springs into the open and locked position when pressure is applied to an elongated activator that comprises part of the handle. The elongated activator locks the blade in position and forms part of the grip of the knife. A separate button on the side of the knife is depressed to retract the blade back into the body of the knife. There is also a blade-shaped storage compartment for replacement blades built into the body of the knife.

ISSUES:

Whether the utility knives are admissible into the United States?

Whether the goods, if determined to be admissible into the United States, are excepted from individual country of origin marking pursuant to 19 CFR 134.32(d)?

LAW and ANALYSIS:

Admissibility

The admissibility of knives into the commerce of the United States is determined according to the Switchblade Knife Act, 15 U.S.C. § 1241, et seq., as implemented by the CBP Regulations at 19 CFR §§ 12.95 – 12.103. The CBP Regulations restate the provisions of 15 U.S.C. § 1241 verbatim. As we have stated many times, most recently in Headquarters Ruling Letter (HQ) 116315, dated March 1, 2005:

Pursuant to the Act of August 12, 1958 (Pub. L. 85-623, codified at 15 U.S.C. §§ 1241-1245, otherwise known as the “Switchblade Knife Act”), whoever knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife, shall be fined or imprisoned, or both. The Customs and Border Protection (“CBP”) Regulations promulgated pursuant to the Switchblade Knife Act are set forth in 19 CFR §§ 12.95-12.103. In this regard we note the following definitions:

§ 12.95 Definitions.

Terms as used in §§12.96 through 12.103 of this part are defined as follows:

(a) Switchblade knife. any imported knife,including “Balisong”, “butterfly” knives, which has one or more of the following characteristics or identities:

(1) A blade which opens automatically by hand pressure applied to a button or device in the handle of the knife, or any knife with a blade which opens automatically by operation of inertia, gravity, or both;

(2) Knives which, by insignificant preliminary preparation, as described in paragraph (b) of this section, can be altered or converted so as to open automatically by hand pressure applied to a button or device in the handle of the knife or by operation of inertia, gravity, or both;

(3) Unassembled knife kits or knife handles without blades which, when fully assembled with added blades, springs, or other parts, are knives which open automatically by hand pressure applied to a button or device in the handle of the knife or by operation of inertia, gravity, or both; or

(4) Knives with a detachable blade that is propelled by a spring-operated mechanism, and components thereof.
b) Insignificant preliminary preparation. “Insignificant preliminary preparation” means preparation with the use of ordinarily available tools, instruments, devices, and materials by one having no special manual training or skill for the purpose of modifying blade heels, relieving binding parts, altering spring restraints, or making similar minor alterations which can be accomplished in a relatively short period of time.

(c) Utilitarian use. “Utilitarian use” includes but is not necessarily limited to use:

(1) For a customary household purpose;

(2) For usual personal convenience, including grooming;

(3) In the practice of a profession, trade, or commercial or employment activity;

(4) In the performance of a craft or hobby;

(5) In the course of such outdoor pursuits as hunting and fishing; and (6) In scouting activities.

Other pertinent regulations are as follows:

§ 12.96 Imports unrestricted under the Act.

(a) Common and special purpose knives. Imported knives with a blade style designed for a primary utilitarian use, as defined in § 12.95(c), shall be admitted to unrestricted entry provided that in condition as entered the imported knife is not a switchblade knife as defined in §12.95(a)(1). Among admissible common and special purpose knives are jackknives and similar standard pocketknives, special purpose knives, scout knives, and other knives equipped with one or more blades of such single edge nonweapon styles as clip, skinner, pruner, sheep foot, spey, coping, razor, pen, and cuticle.

(b) Weapons with fixed blades. Importations of certain articles having a fixed unexposed or exposed blade are not within the prohibition of 15 U.S.C. 1241 through 1245. However, upon release by Customs, possession of these admissible articles which include such weapons as sword canes, camel whips, swords, sheath knives, machetes and similar devices that may be capable of use as weapons may be in violation of State or municipal laws.

§ 12.97 Importations contrary to law.

Importations of switchblade knives, except as permitted by 15 U.S.C. 1244, are importations contrary to law and are subject to forfeiture under 19 U.S.C. 1595a(c).

The plain language of the statute and relevant CBP regulations prohibit the importation of knives which are for use solely as weapons while explicitly permitting the importation of “common and special purpose” knives (see 15 U.S.C. §§ 12.95(c)(“Utilitarian Use” and 12.96(a) (“unrestricted imports”)). Several courts have addressed the breadth of the prohibition set forth in the statute (see, e.g., Precise Imports Corp. v. Kelly, 378 F.2d 1014, 1017 (2d Cir. 1967), (“We hold, therefore, that a knife may be found to be a switchblade knife within the meaning of the Switchblade Knife Act if it is found that it can be made to open automatically by hand pressure, inertia, or gravity after insignificant alterations, and that one of its primary purposes is for use as a weapon.”)(Taylor v. United States, 848 F.2d 715, 717 (6th Cir. 1988)(“describing a Balisong: "while the exotic knife has some utilitarian use, it is most often associated with the martial arts and with combat . . . [and is] potentially dangerous, lethal . . .." Citing another district court decision involving the same issue, Precise Imports Corp. v. Kelly, 378 F.2d 1014 (2d Cir.), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967) (upholding a seizure of certain knives with no legitimate purpose), the district court described it as of "minimal value" and distinguished another "seminal case interpreting the Act", United States v. 1,044 Balisong Knives, No. 70-110 (D. Ore. Sept. 28, 1970) (refusing to support seizure). The district court concluded that "congress intended to prohibit knives that opened automatically, ready for instant use . . . [and] was not concerned with whether the knife's blade would merely be exposed by gravity", . . . [it] intended 'open' to mean 'ready for use.'" Taylor v. United States, 848 F.2d 715, 717 (6th Cir. 1988).

In Precise Imports Corp. v. Kelly, 378 F.2d 1014, 1017 (2d Cir. 1967), the court observed that: The report of the Senate Committee on Interstate and Foreign Commerce which recommended passage of the Switchblade Knife Act stated that the enforcement of state laws banning switchblade knives would be extremely difficult as long as such knives could be freely obtained in interstate commerce, and added:

"In supporting enactment of this measure, however, your committee considers that the purpose to be achieved goes beyond merely aiding States in local law enforcement. The switchblade knife is, by design and use, almost exclusively the weapon of the thug and the delinquent. Such knives are not particularly adapted to the requirements of the hunter or fisherman, and sportsmen generally do not employ them. It was testified that, practically speaking, there is no legitimate use for the switchblade to which a conventional sheath or jackknife is not better suited. This being the case, your committee believes that it is in the national interest that these articles be banned from interstate commerce." S.Rep. No. 1980, 85th Cong., 2d Sess., reprinted in 2 U.S. Code Cong. & Ad. News 1958, at 3435-37.

In Fall v. Esso Standard Oil Co., 297 F.2d 411, 414 (5th Cir. 1961), a wrongful death suit brought by the widow of a sailor who was stabbed with a switchblade, the court, through dicta, observed that because of their requisite characteristics, the type of and apparent intended use knives must be considered vis-à-vis the Switchblade Knife Act:

A useful tool may be a dangerous weapon. Lizzie Borden took an axe. A weapon may be a useful tool. The trial judge cleaned fish with his switchblade knife. But an axe belongs in a tool shed; a seaman cannot bring one aboard ship . . . Because of the dual nature of certain instruments as tools and weapons, the determination of the character of the instrument for purposes of the litigation is usually one for the jury.

Thus the court stated the essential question that must be answered here: if what appears to be a drywall or utility knife has characteristics of, i.e., opens automatically like a prohibited switchblade knife, does the utilitarian or commercial purpose exception in 19 CFR § 12.95(c) override the general prohibition?

The knives at issue appear to be drywall or utility knives, equipped with utility knife blades. We have conducted extensive research regarding the switchblade knife act and the types of knives that are proscribed thereby, no authority appears to exist which addresses the exceptions to the act for “utilitarian” knives set forth at 19 CFR 12.95(c).

It is axiomatic in regard to the interpretation of statutory language that “when . . . the terms of a statute [are] unambiguous, judicial inquiry is complete, except in rare and exceptional circumstances.” United States v. James, 478 U.S. 597, 606, 92 L. Ed. 2d 483, 106 S. Ct. 3116

(1986) (quoting Rubin v. United States, 449 U.S. 424, 430, 66 L. Ed. 2d 633, 101 S. Ct. 698 (1981) (internal quotation marks omitted)). Moreover, absent a “clearly expressed legislative intention to the contrary,” a statute's plain meaning “must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Glaxo Operations UK, Ltd. v. Quigg, 894 F.2d 392, 395 (Fed. Cir. 1990).

We conclude that while all knives can potentially be used as weapons, given that 19 CFR 12.95(c) lists six enumerated utilitarian uses (set forth above), only those knives that are specifically designed as (or insignificant preliminary preparation can be made into) switchblade knives or weapons are proscribed under the relevant statute and regulations.

In turning to the knives at issue, the “Quick Change Folding Utility Knife” (model # 150014) which describes the two folding utility knives in two sizes, “Mini” and “Large,” open by the depression of a button which allows the articles to be manually opened, rather than “by operation of inertia, gravity, or both.” See 19 CFR 12.95(a)(2) above. The Quick Change knives cannot be opened by “the flick of a wrist.” See HQ 115713, dated July 29, 2002, HQ 115725 dated July 22, 2002 and New York Ruling Letter (NY) G83213, dated October 13, 2000. These knives are variations of utilitarian knives used by tradesmen. Therefore, the Quick Change Folding Knives fall within the utilitarian and commercial purpose exception set forth in the pertinent regulations at 19 CFR § 12.95(c). Thus, these models do not violate the proscriptions of the Switchblade Act and are admissible into the United States.

The “Squeeze Knife”™ is opened by the application of pressure on the handle that springs the utility blade into the extended and locked position. Because of these characteristics, the “Squeeze Knife”™ prima facie meets the definition of a switchblade knife as provided in § 12.95(a)(1) (i.e., a blade which opens automatically by operation of inertia, gravity or both). However, the utility knife is similar to a utility knife in appearance and function, and the utility blade extends approximately one inch when exposed. This model is not a prototypical switchblade or stiletto; rather, it is a spring activated utility knife which is designed for single-handed use by tradesmen. Given the explicit language of the Switchblade Knife Act and the implementing regulations, we are constrained to conclude that the Squeeze Knife is prohibited from entry into the United States pursuant to the Switchblade Knife Act (15 U.S.C. §§ 1241-1245).

The “Quick Release Folding Knife” (model # 150017) does not have the proscribed characteristics of a switchblade or gravity knife. While it does fold open when a button is depressed, the folding action exposes stored blades, rather than exposing a blade for immediate use. Therefore, this model does not violate the proscriptions of the Switchblade Act and is admissible into the United States.

Marking

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 is the product. “The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods are produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlaender & Co, 27 C.C.P.A. 297 at 302 (1940).

Part 134, Customs and Border Protection (CBP) 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.

Articles for which the marking of the containers will reasonably indicate the origin of the article are excepted from marking under 19 U.S.C. 1304(a)(3)(D). For an exception to be granted under 19 U.S.C. 1304(a)(3)(D), generally the article must be imported in a marked retail container which will reach the ultimate purchaser unopened. See also 19 CFR 134.32(d).

The samples are presented packaged for retail sale in plastic blister packs which are marked with country of origin. The NCSD opines, and we agree, that in all foreseeable circumstances the knives and blades will remain in their packaging until they reach the ultimate consumer. We conclude that the utility knives are excepted from individual country of origin marking pursuant to 19 CFR 134.32(d).

HOLDING:

The “Quick Change Folding Utility Knife” (model # 150014) in two sizes, “Mini” and “Large,” fall within the utilitarian and commercial purpose exception set forth in the pertinent regulations at 19 CFR § 12.95(c) and are admissible into the United States.

The “Squeeze Knife”™ prima facie meets the definition of a switchblade knife as provided in § 12.95(a)(1) (i.e., a blade which opens automatically by operation of inertia, gravity or both) and is prohibited from entry into the United States pursuant to the Switchblade Knife Act (15 U.S.C. §§ 1241-1245).

The “Quick Release Folding Knife” (model # 150017) does not have the proscribed characteristics of a switchblade or gravity knife and is admissible into the United States.

We conclude that the utility knives are excepted from individual country of origin marking pursuant to 19 CFR 134.32(d).

George Frederick McCray, Esq.
Chief, Intellectual Property Rights Branch

The dissemination of this document, or the language contained herein, to any persons or entities outside the U.S. Government or cooperating law enforcement agencies is strictly prohibited absent expressed prior approval of the Intellectual Property Rights Branch, Office of Regulations & Rulings, U.S. Customs & Border Protection.

The dissemination of this document, or the language contained herein, to any persons or entities outside the U.S. Government or cooperating law enforcement agencies is strictly prohibited absent expressed prior approval of the Intellectual Property Rights Branch, Office of Regulations & Rulings, U.S. Customs & Border Protection.

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