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NY F86804

May 9, 2000

MAR-2 RR:NC:N1:113 F86804


Mr. Don M. Obert
Follick & Bessich
33 Walt Whitman Road
Suite 204
Huntington Station, NY 11746


Dear Mr. Obert:

This is in response to your letter dated May 4, 2000, on behalf of Admiral Craft Equipment Corp., requesting a ruling on whether the proposed method of marking the container in which flatware is imported with the country of origin in lieu of marking the article itself is an acceptable country of origin marking for the imported flatware. A marked sample container was submitted with your letter for review.

The merchandise consists of flatware, imported from China, India, Japan, Korea, Taiwan, Indonesia and Thailand. The flatware is specifically manufactured for use by institutional buyers such as restaurants, hotels, airlines, nursing homes and hospitals. It includes assorted sizes and styles of knives, forks and spoons. None of the flatware is imported in sets. The foreign manufacturer will wrap each piece of flatware in an individual unsealed plastic wrapper. The flatware will then be packaged in immediate cardboard boxes, each box containing twelve pieces of the same type of flatware. Multiple dozens will then be packaged into master shipping cartons. You intend to mark both the cardboard boxes and the shipping cartons with the country of origin, without marking the individual pieces of flatware. Occasionally, Adcraft may be required to open the outer shipping carton to fulfill smaller orders of less than a full carton. In those cases, the flatware will remain in its immediate, marked, cardboard box.

Adcraft will distribute the flatware in the marked cardboard boxes directly to institutions, such as restaurants, and indirectly through distributors in the form of restaurant supply companies. The supply companies will re-sell the merchandise to food service institutions. Adcraft does not sell its flatware in quantities of less than a dozen and does not repackage the flatware after importation under any circumstances. Adcraft states it is aware of the requirements of 19 CFR 134.26(a)(2).

The facts of this case are similar to HQ 559398, where Customs excepted flatware and chinaware from individual country of origin marking because the articles were sold to hotels, restaurants, and institutions, and not at retail outlets. The utensils were also packed in immediate marked containers that held one dozen of the same type of utensil. The master shipping cartons holding 30-50 immediate containers were also marked. Customs held that since there were no retail purchasers and all of the imported flatware and chinaware were packed in properly marked bulk containers, the flatware and chinaware were excepted from individual country of origin marking provided the Customs officials at the port of entry were satisfied that the ultimate purchasers received the flatware and chinaware in the original unopened properly marked outer container. In those instances, where the outer boxes were opened, it was determined that the requirements of 19 C.F.R. §134.26 had to be satisfied.

Section 134.26(a), Customs Regulations {19 C.F.R. §134.26(a)}, provides in pertinent part that:

If an imported article subject to these requirements is intended to be repacked in retail containers (e.g. blister packs) after its release from Customs custody, or if the port director having custody of the article, has reason to believe that such article will be repacked after its release, the importer shall certify to the port director that: ... (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements.

Paragraph (d) of that section specifies the notice that shall be given to the subsequent purchaser or repacker.

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 purchaser of the flatware is the institutional customer who purchases the product at retail for use.

Pursuant to 19 U.S.C. §1304(a)(3)(D) and 19 C.F.R. §134.32(d), an exception from individual marking is applicable where the marking of a container of such article will reasonably indicate the origin of the article. This exception is normally applied in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser will receive it in the original unopened marked container. Relevant factors regarding whether an article is likely to remain in its original container include the chain of distribution, the type of container, and the nature of the article.

Special marking requirements for knives and forks are set forth at 19 C.F.R. §134.43(a), which require them 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) -- if the marking of the container will reasonably indicate its country of origin.

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 flatware by viewing the container in which it is packaged, the individual flatware would be excepted from marking under this provision.

Flatware that is imported in containers that are marked in the manner described above, is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the flatware 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 flatware 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 James Smyth at 212-637-7008.


Robert B. Swierupski

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