Country of Origin Marking for Certain Lawn Pruning Tools; Application of 19 C.F.R. §134.43

HQ H073916 November 4, 2009 CLA-2 OT:RR:CTF:TCM H073916 JRB CATEGORY: Country of Origin Marking Timothy C. Brightbill Wiley Rein, LLP 1776 K Street, NW Washington, DC 20006 RE: Country of Origin Marking for Certain Lawn Pruning Tools; Application of 19 C.F.R. §134.43 Dear Mr. Brightbill: This is in response to your letter on behalf of your client Ames True Temper, Inc. (“ATT”), dated August 17, 2009, to U.S. Customs and Border Protection (“CBP”) Office of International Trade, Regulations and Rulings, Commercial and Trade Facilitation Division for a binding ruling on the appropriate country of origin marking for certain lawn pruning tools. Our response to your ruling request is below. FACTS: The commodities that are the subject of this ruling request are four tools used to cut or trim shrubs, branches, and stems which are imported from China or Taiwan and consigned to ATT’s customers for sale and end uses. In particular, they are marketed as: (1) the True Temper Hedge Shear (Item 2346130); (2) the True Temper Bypass Lopper (Item 2342430); (3) the True Temper Ratchet Anvil Pruner (Item 2343030); and (4) the True Temper Forged Bypass Pruner (Item 2343130). The Hedge Shear is described as a shear with a ten inch non-stick steel blade with wood handles and comfort grips. The Bypass Lopper has a one and a half inch steel blade with steel handles. The Ratchet Anvil Pruner has a half inch cutting capacity steel blade. The Forged Bypass Pruner has a 5/8 inch cutting capacity steel blade with non-slip grips. Historically, ATT has marked these tools by die stamping the country of origin marking onto the metal of the carbon steel blades of each item. In addition, the tools also had a country of origin marking on the retail packaging materials and the handle of the Bypass Lopper. ATT now wishes to mark only the packaging materials that will remain on the products at retail sale. Images of the packaging materials and the proposed markings are below.
The packaging for the Bypass Loppers contains the following Country of Origin Marking:
The handle for the Bypass Lopper also contains the following Country of Origin Marking:
The packaging for the Hedge Shear has the following Country of Origin Marking:
The packaging for the Ratchet Anvil Pruner has the following Country of Origin Marking:
Finally, the packaging for the Forged Bypass Pruner has the following Country of Origin Marking:
ISSUE: Whether the four products listed above must be marked by die stamping, cast-in-the-mold lettering, etching, engraving, or by metal plates that are permanently secured to the product? 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 United States 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 United States 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 were 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, 302 (1940). Part 134 of CBP Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.41(b) (19 C.F.R. §134.41(b)) mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. Section 134.1(d), Customs Regulations (19 C.F.R. §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. In addition section 134.43(a) provides: (a) Marking previously required by certain provisions of the Tariff Act of 1930. Except for goods of a NAFTA country, articles of a class or kind listed below shall be marked legibly and conspicuously by die stamping, cast-in-the-mold lettering, etching (acid or electrolytic), engraving, or by means of metal plates which bear the prescribed marking and which are securely attached to the article in a conspicuous place by welding, screws, or rivets: knives, forks, steels, cleavers, clippers, shears, scissors, safety razors, blades for safety razors, surgical instruments, dental instruments, scientific and laboratory instruments, pliers, pincers, nippers and hinged hand tools for holding and splicing wire, vacuum containers, and parts of the above articles. Goods of a NAFTA country shall be marked by any reasonable method which is legible, conspicuous and permanent as otherwise provided in this part. Articles for which the marking of the containers will reasonably indicate the origin of the article are granted an exception from the requirement that all articles must be marked. See 19 U.S.C. §1304(a)(3)(D). Section 134.32 promulgates the general exceptions for the marking requirements. See 19 C.F.R. §134.32. In particular 19 C.F.R. §134.32(d) provides: The articles described or meeting the specified conditions set forth below are excepted from marking requirements (see subpart C of this part for marking of the containers): (d) Articles for which the marking of the containers will reasonably indicate the origin of the articles; As noted above, section 134.43(a) provides that the section applies to shears and articles of a class or kind similar to shears. Shears are defined as “scissors of a large size” or other cutting instruments similar to scissors that “operate by the simultaneous action of two blades on opposite sides of the material to be cut.” See The Oxford English Dictionary (1989 ed.). All of the subject merchandise would be considered within the class or kind of goods that are similar to shears because they are all essentially large scissors that operate by having two blades on opposite sides of the material to be cut. Therefore, these products must be marked using the specific methods provided in 19 C.F.R. §134.43(a) unless it meets one of the recognized exceptions from specific marking requirements. Applying the general exception in 19 C.F.R. §134.32 to the four marking proposals in this ruling request, we find that marking the packaging material and/or the handles presented qualifies for this exception because the packaging remains on the product until it is purchased by the ultimate purchaser (the consumer) and the marking reasonably indicates the country of origin of the goods. Therefore, the products do not have be marked according to the specific methods provided for in 19 C.F.R. §134.43(a). Instead, they can be marked on the retail packaging that will be put on every one of the products for retail sale such that the final consumer will be able to discern that the products are products of another country. HOLDING: The merchandise at issue is subject to the special marking requirements in 19 C.F.R. §134.43(a). However, your proposals to mark the packaging material and/or the handles of these tools with the country of origin are sufficient so long as the materials used to mark the products are sufficient to reach the retail purchaser. 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 CBP officer handling the transactions. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch