MAR-2-05 CO:R:C:V 734154 NL
Michael K. Tomenga, Esq.
McKenna & Cuneo
1575 Eye Street, N.W.
Washington, D.C. 20005
RE: Country of Origin Marking - Stainless Steel Silver Plated
Flatware; Ultimate Purchaser; Container Marking; 19 CFR
134.32(d); 19 CFR 134.34; 19 CFR 134.43; C.S.D. 80-44
Distinguished.
Dear Mr. Tomenga:
This is in response to your letter of May 2, 1991, in which
you request a ruling concerning the country of origin marking
requirements applicable to certain stainless steel flatware
imported by your client, World Tableware International.
FACTS:
World Tableware imports stainless steel flatware for sale to
hotels, restaurants, and institutions. Its flatware is not sold
at retail outlets. At importation the utensils are packed in
immediate containers which hold three dozen individual utensils
of the same type (e.g., fork, knife, or spoon). Twelve immediate
containers are packed in a master shipping carton. Both the
immediate container and the master carton are marked with the
flatware's country of origin. In addition, each container will
bear artwork indicating that World Tableware is the distributor
of the flatware.
After importation the flatware is sent for silver plating to
a company under contract to World Tableware. The plated flatware
is then repacked in its original containers and returned to World
Tableware for distribution. You represent that if it becomes
necessary to open an immediate container to fill an order for more
than an even multiple of three dozen pieces, World Tableware would
pack the extra dozen pieces separately in marked containers kept
on hand for this purpose.
ISSUE:
May the flatware be excepted from individual country of
origin marking based upon the marking of its immediate and master
containers?
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. Part 134, Customs
Regulations, implements the country of origin marking
requirements and exceptions of 19 U.S.C. 1304.
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). See C.S.D. 80-44. 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.
Under the facts presented here, this rationale is
inapplicable. The ultimate purchasers of World Tableware's
flatware are restaurants and institutions who would not be likely
to remove the packaging without purchasing the merchandise. On
the contrary, we find that such ultimate purchasers will receive
the flatware in properly marked bulk containers. Based upon your
representations that there are no retail purchasers, and that
special marked containers will be set aside for orders in less
than even dozens, we foresee no circumstances in which the
flatware will reach ultimate purchasers outside their marked
containers. However, because the flatware will be removed from
its marked containers after importation for purposes of plating
and will be repacked in the U.S., an exception under 19 CFR
134.32(d) must be approved by the district director pursuant to
19 CFR 134.34.
Under the procedures of 19 CFR 134.34, an article may become
eligible for the exception upon satisfaction of such requirements
of certification, verification, submission of samples, or other
requirements as the district director may, in his discretion,
determine are necessary to assure that the article will be
properly marked after repacking in the U.S. Here, provided the
district director is provided with such assurances of compliance
as he may require, we are of the opinion that the flatware may
be eligible pursuant to 19 CFR 134.34 for the exception provided
at 19 CFR 134.32(d).
HOLDING:
Subject to such requirements and procedures as the district
director may require under 19 CFR 134.34, the imported flatware
which is plated and then placed again in its containers may be
excepted from the special marking requirements of 19 CFR 134.43,
as the marked containers will satisfy the requirements of 19 CFR
134.32(d).
Sincerely,
John Durant
Director, Commercial
Rulings Division