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HQ 735482
April 4, 1995
MAR-2-05 CO:R:C:S 735482 KR
CATEGORY: Marking
Mr. Steven P. Sonnenberg Sonnenberg, Anderson & Rodriguez 200 South Wacker Drive 33rd Floor Chicago, Illinois 60606
RE: Country of origin marking of fastener; alternative country of origin marking.


Dear Mr. Sonnenberg:
This is in response to your letter dated January 9, 1995, requesting a country of origin marking ruling on behalf of your client, Whitesell Manufacturing, Inc., regarding fasteners which are manufactured in the U.S. and Taiwan. You have submitted sample boxes for our review.

FACTS:

You state that Whitesell Manufacturing Inc. (hereinafter "Whitesell"), manufacturers fasteners which are sold directly to the end users, and sells none through distributors to the general public. You state that 80% of the fasteners are of U.S. origin and 20% are imported from Taiwan. The fasteners are not commingled, but are kept in separate inventory. The fasteners are sold in boxes. Each box of fasteners contains only domestic or only imported fasteners. The fasteners are never commingled.
You state that there are three types of labels used on the boxes Whitesell uses to package the fasteners. The boxes containing the imported fasteners bear a label which reads:

THIS CARTON CONTAINS DOMESTIC FASTENERS AND/OR FASTENERS PRODUCED IN TAIWAN THESE FASTENERS HAVE BEEN PRODUCED TO MEET ALL WHITESELL MANUFACTURING'S QUALITY STANDARDS
MADE IN TAIWAN
You state that although the box will only contain imported fasteners, the language including "DOMESTIC" fasteners is used in the case of an error in applying a label to the wrong box which would contain only domestic fasteners.
A box containing only domestic fasteners, but of a type which is also imported, will be marked with the same label as above, minus the "MADE IN TAIWAN":

THIS CARTON CONTAINS DOMESTIC FASTENERS AND/OR FASTENERS PRODUCED IN TAIWAN THESE FASTENERS HAVE BEEN PRODUCED TO MEET ALL WHITESELL MANUFACTURING'S QUALITY STANDARDS
A box containing fasteners of a type which are only produced domestically are packaged in a box which contains no country of origin label. Each of the sample boxes was printed with Whitesell's U.S. address in Muscle Shoals, Alabama.

ISSUE:

Whether the country of origin marking may list alternative countries as the possible country of origin on the packaging of fasteners where the fasteners are not commingled.
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. The Court of International Trade stated in Koru North America v. United States, 701 F. Supp. 229, 12 CIT 1120 (CIT 1988), that "in ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved." The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that: "Congress intended 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."
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 (19 CFR 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. The definition then gives examples of who might be the ultimate purchaser if the imported article is used in manufacture, if the imported article is sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.
An article is excepted from marking under 19 U.S.C.

1304(a)(3)(D) and 19 CFR 134.32(d), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, if the fasteners are imported and sold in marked containers and the ultimate purchaser can tell the country of origin of the fasteners by viewing the country of origin marking on the container, the individual pieces would be excepted from marking under this provision.

Customs policy is that in most circumstances, it is not acceptable for purposes of 19 U.S.C. 1304 to mark an article with the legend "Product of ____ or ____". In C.S.D. 89-111 we ruled that certain effervescent enzymatic cleaner tablets, products of both the U.S. and West Germany, were required to be marked for retail sale with the actual country of origin of West Germany. Although Customs acknowledged that the seller could avoid expense by using the disjunctive marking, "Made in ___, or ____", Customs was not satisfied that fully accurate marking would amount to an economic prohibition, and therefore required the item to be marked with only the actual country of origin of each individual item.

Although Customs normally requires that an article be marked with its specific country of origin, in some cases we have determined that strict compliance with this requirement would be economically prohibitive and alternative methods have been approved. In C.S.D. 84-50, regarding fertilizer, and C.S.D. 84-44, regarding honey, the product was a repacked blend from multiple countries, and marking of the major source countries was required. In those cases Customs did not agree that it was economically prohibitive to mark the articles with a substantial degree of accuracy.

In HQ 734101 (July 9, 1991), we allowed toys sold inside plastic eggs in a vending machine to be individually marked with the actual country of origin, but since this was not visible, to have the machine marked "The Toys Contained In This Machine Are Marked With The Country Of Origin, And May Be Made In One Or More Of The Following Countries: Hong Kong Taiwan China". In that case, the items themselves are marked with the actual country of origin but the packaging contains the alternative country of origin designations. However, in the toy case, the marking with the alternative countries of origin also stated that the individual items contained the country of origin marking. In another case, Customs ruled that an importer of automobile parts may mark the packaging "Contents Imported, See Article for Country of Origin". HQ 734491 (April 13, 1992).
Customs discussed the commingling and marking of semiconductors in T.D. 75-187 (July 22, 1975). In that case Customs allowed the marking in the alternative of semiconductors. That case stated, however, "This ruling will apply only where all of the commingled devices are made in foreign countries. The ruling will not be applicable if foreign devices are commingled with domestically-manufactured devices."
In HQ 734165 (December 2, 1991), Customs ruled that for LEGO toy building blocks, U.S. products may be commingled with foreign products and be marked in the alternative. The marking was allowed because the blocks were small and difficult to mark; fungible; and even though molded in different countries, the initial pellets used to make the block were all made in the same location.

Screws, nuts, bolts, and washers are different types of industrial fasteners. In Headquarters Ruling Letter 723668, C.S.D. 84-56 (December 12, 1983), Customs approved an alternative method of marking for industrial fasteners. Customs, in C.S.D.

84-56, has allowed one exception to the rule not allowing marking in the disjunctive. In C.S.D. 84-56, Customs allowed fasteners to be marked "from one or more of the following countries...." to indicate the country of origin of fasteners, where there were many varieties from many countries. The major source countries were required to be indicated. That ruling permits a country of origin label which lists only the major source countries from which a repackager acquired his stock. The label should list the countries in the order of the greatest percentage of stock (by weight or piece) to the least percentage of stock. Countries from which a repackager obtains only small quantities of fasteners need not be listed. This partial exemption from Customs law was allowed to "eliminate the economic prohibitions of strict compliance but preserve the repackager's obligation to advise the ultimate purchaser of the foreign origin of the repackaged fasteners." C.S.D. 84-56. See also HQ 732382 (November 20, 1989)(regarding how to mark the containers of fasteners when a company commingles foreign and U.S. made fasteners).

In each of the cases allowing alternative form of marking, either the actual item was marked with its country of origin, or the items were commingled thereby necessitating multiple countries of origin. In the instant case, Whitesell is not marking the fasteners themselves with their country of origin, nor is Whitesell commingling the fasteners. Whitesell will actually know the country of origin of the fasteners it is putting in each box. Therefore, we do not find it necessary to allow an alternative means of marking the boxes of fasteners. We do not believe that the possibility of an error in placing a country of origin label establishes sufficient grounds for finding a legal exception to the marking requirements.
Moreover, section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of the country or locality in which the article was manufactured or produced, appear on a imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. See HQ 708994 (April 24, 1978). The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article. Section 134.36(b) provides that no exceptions to marking required under 134.46 should be made.

All the boxes used by Whitesell have Whitesell's U.S.

address in Muscle Shoals, Alabama, printed on the side panel of the box. The country of origin marking, even if allowed, appears on the top of the box. For those boxes containing imported fasteners, the country of origin must appear on the same side as the U.S. address of Whitesell, preceded by the words "Made in" or "Product of" or other similar words.
HOLDING:

Whitesell must mark the boxes of the imported fasteners with their country of origin, without indicating that the box may also contain domestic fasteners, as discussed above. The country of origin must appear on the same side or panel as the U.S. address of Whitesell, preceded by the words "Made in" or "Product of" or other similar words, in similar sized print as used for the U.S.

address.
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 Customs officer handling the transaction.


Sincerely,
John Durant, Director Commercial Rulings Division