MAR-2-05 CO:R:C:V 731084 jd
Mr. Steven Newman
Newman, Wilson & Co., Inc.
421 S.W. Sixth Avenue
Portland, Oregon 97204
RE: Country of origin marking requirements for imported fishing
flies
Dear Mr. Newman:
This is in reply to your submission of February 16, 1988,
requesting a ruling on the country of origin marking requirements
applicable to imported fishing flies. You are aware of prior
Customs rulings requiring individual marking of fishing flies,
but you have presented evidence which you believe warrants our
departure from that position.
FACTS:
The product
Fish flies are fish hooks of various sizes, either barbed
or nonbarbed, to which are hand-tied various combinations of
furs, feathers, tinsel, thread, and sometimes imitation insect
body parts such as eyes. Flies come in thousands of patterns and
approximately 1000 of these patterns are imported into the U.S.
Each pattern is available in two to eight different sizes,
duplicating as nearly as possible the size and configuration of
various insects at different stages of their life cycles.
Among the countries currently exporting flies to the U.S.
are Sri Lanka, Thailand, Mauritius, Columbia, China, Singapore,
Kenya, Hong Kong, Guatemala, Malaysia, Portugal, and England.
Flies are usually imported in boxes of one dozen or five
dozen. The boxes are marked to indicate pattern, size, quantity,
and country of origin. However, the ultimate purchaser would
rarely, if ever, receive flies in these boxes. Boxes of one
dozen typically go to retailers or catalogers for resale to
individuals. Boxes of five dozen are repackaged by general
retailers in small blister packs for sale to individuals.
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Methods of sale
Fish flies are retailed by three methods- general
retailers, catalog sales, and specialty shops.
General retailers are usually large stores that have a
sporting goods department offering fishing equipment. Their
sales are primarily of flies packaged in small blister packs.
Catalogs are published by fishing equipment specialists, as
well as firms offering a variety of merchandise. Depending on
the catalogers emphasis on fishing equipment, the catalog can
offer from as little as a few dozen flies to several hundred.
Catalog sales are completed by mailing flies to purchasers loose
in plastic boxes or in boxes where the hook has been placed
through a strip of foam glued to the bottom of the box.
Specialty shops, which account for the largest share of the
fly market, display flies in cabinets divided into small bins
between two to four inches square. Bins are labeled as to
pattern and size. Some shops may display as many as 500 patterns
at an average of four sizes per pattern resulting in 2000
separate bins. Purchasers hand pick from the bins after
examining the flies for quality.
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19
U.S.C. 1304), requires 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 will permit in such a manner as to indicate
to the ultimate purchaser the English name of the country of
origin of the article. Part 134, Customs Regulations (19 CFR
Part 134), sets forth regulations implementing the country of
origin marking requirements and exceptions of 19 U.S.C. 1304.
Both the law and regulations provide that whenever an article is
excepted from the marking requirements, the immediate container
of the article shall be marked to indicate to an ultimate
purchaser in the U.S. the English name of the country of origin
of the article.
Strict compliance with the marking statute would require
that each individual fish fly be marked to indicate its country
of origin. Customs has adopted this approach in the past and
suggested that flies be marked with adhesive labels, string tags,
or be packaged in individual plastic bags (See ruling 730869 km,
dated December 16, 1987).
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Customs has now been presented with evidence establishing
that those marking methods are impractical. Adhesive labels
damage a fly by leaving residue on the feathers. String tags
become hopelessly tangled while flies are grouped in retail bins
awaiting purchase. Placing flies in plastic bags is unacceptable
since the tendency of the bag to return to its flat condition
crushes the barbules of the feathers used on many patterns of
flies.
Some importers have complied with Customs position of
requiring individual marking of flies by piercing a mylar tag
imprinted with country of origin information through the hook of
the fly. However, we have been advised that this has proven
unacceptable because removal of the tag before use necessitates
grasping the body of the fly in such a way as to injure the
feathers. Also, as more fly manufacturers change over to
barbless hooks, the tags fall off in transit. One fly
manufacturer's insurance company has expressed concern over the
liability implications of selling flies in a condition where the
hook must be handled to remove a tag before use. Finally, if the
tags are removed while outdoors, they could contribute to the
litter problem.
According to one fly manufacturer, dealers and consumers
are unwilling to accept tagged flies. This manufacturer
attributes the reduction from 2088 sales outlets to less than 600
sales outlets during one selling season to the public's
unwillingness to purchase tagged flies.
In addition to the difficulties caused by the various
marking methods of labels, tags, and bagging outlined above, any
of those methods interfere with two common tests performed by
knowledgeable fly fisherman selecting flies from retail bins.
First, the hackles or barbules are tested for desired firmness by
gently stroking the fly with a fingertip or brushing the fly
gently against the lips. Secondly, a properly tied and balanced
fly should land upright when dropped onto a flat surface.
Neither of these tests can be properly performed if flies are
encumbered by labels or tags, or enclosed in plastic bags.
HOLDING:
Customs is now convinced that requiring individual marking
of fishing flies is impractical. Therefore, pursuant to 19
U.S.C. 1304(b) and { 134.22, Customs Regulations, the outermost
container or holder in which the flies reach the ultimate
purchaser shall be marked to indicate the country of origin of
the flies. Customs reaches this decision only after being
presented with evidence of the fish fly industry's good faith
compliance with individual marking and the undesired side effects
such compliance produced. We are of the opinion they have
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demonstrated the extraordinary circumstances which must be
present in order to permit an exception to the rule of individual
marking.
The three types of retailers will be considered in
compliance with the marking law if they adhere to the following
guidelines.
General retailers
Blister packs must be conspicuously marked on the front
panel with country of origin information. The words, "Made in",
"Product of", or "Hand tied in" will be acceptable.
Catalog sales
Inasmuch as reading the advertisement printed in a catalog
is the equivalent of reading the country of origin marking on
an article or a retail holder or container, there shall appear in
close proximity to the advertisements for flies in a catalog a
notice stating the English name of the country of origin of each
fly offered for sale.
The immediate container in which the flies will reach the
ultimate purchaser must be marked by means of an adhesive label
securely attached to a conspicuous portion of the container. If
the flies are contained in a box intended for reuse, such as the
sample aluminum box with individual compartments, { 134.23,
Customs Regulations (19 CFR 134.23), requires that the container
be separately marked to indicate country of origin. A label
imprinted with country of origin information may be placed inside
the container as an alternative to use of adhesive stickers.
Specialty shops
Due to the large number of bins displayed in some specialty
shops, Customs will not require separate country of origin
marking on each bin. However, a sign must be posted in a
conspicuous location near the bins indicating the origin of the
flies contained in the bins. Every display area must contain at
least one such sign and large areas must post additional signs
every 10 feet along the display area.
Multiple sources of similar flies
Customs is aware that often a retailer will receive similar
flies from distinct sources and that the flies are commingled
awaiting packaging and sale. Once commingled, the flies cannot
be separated on the basis of country of origin. It would be
unreasonable to require the flies be kept segregated during
storage. The proliferation of patterns and sizes from different
sources would result in an unmanageable number of storage
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containers. During a meeting with Customs officials on February
22, 1988, you stated that a retailer would usually have flies in
inventory at any one time that came from no more than four or
five sources.
In consideration of the multiple country sourcing practices
prevalent in the fish fly industry, Customs will permit marking
that identifies the possible sources, limited to five countries,
from which the flies in a container or holder may have
originated. Multiple source marking is available for blister
packs, the copy printed in catalogs, the immediate containers in
which flies are shipped to catalog customers, and for the bins
maintained in specialty shops.
This ruling modifies ruling 730869 km, December 16, 1987,
and all previous rulings on the marking of fish flies.
Sincerely,
Harvey B. Fox
Director, Office of
Regulations and Rulings