MAR-2-05 OT:RR:CTF:TCM H033598 JPJ
Mr. Presley Melton
Melton Company Inc.
5900 Patterson Road
Little Rock, AR 72209
RE: Country of origin marking of caskets; Bottom of Casket; Conspicuous; 19 CFR 134.41; NY N013043 Revoked.
Dear Mr. Melton:
This letter is to inform you that Customs and Border Protection (CBP) has reconsidered New York Ruling letter (NY) N013043, issued to you on July 12, 2007. CBP has determined that NY N013043 is incorrect.
NY N013043 determined, in relevant part, that marking an imported casket with country of origin “Made in China” near the center of the bottom panel using permanent ink was conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 C.F.R. Part 134.
On March 26, 2009, pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 43, No. 13. One comment was received in support of the notice.
FACTS:
You import burial caskets from China and sell them to funeral homes. In turn, funeral service providers sell the imported caskets to the final consumers.
You currently mark the bottom of each casket using permanent ink with
“Made in China” in letters clearly readable from a distance. You provided an electronic photograph of the bottom of a casket displaying the “Made in China” country of origin marking.
You argued that because a casket is finished on all sides and on the top (photograph provided), these finished surfaces do not lend themselves to country of origin marking. Therefore, country of origin marking is affixed on the unfinished bottom, along with other inventory control and model number labeling.
You also argued that country of origin marking on the bottom of the casket was consistent with country of origin marking used in the furniture industry. You stated that you had observed that on virtually all furniture that is finished on all sides (tables, chests, bed frames, wooden chairs, etc.) the country of origin is marked on the bottom. You alleged that marking on the bottom of a casket was clearly available to the purchaser who examined the product, but did not detract from the overall appearance of a casket as it was being used at a funeral.
ISSUE:
Whether country of origin marking near the center of the unfinished bottom panel of a casket is conspicuous pursuant to the requirements of 19 U.S.C. 1304 and section 134.41, CBP Regulations (19 C.F.R. 134.41).
LAW AND ANALYSIS:
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 imported into the U.S. 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 in the U.S. 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).
Part 134, CBP Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, CBP Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. The ultimate purchaser in the U.S. is not the funeral home, but the individual. Section 134.1(k), CBP Regulations (19 CFR 134.1(k)), defines “conspicuous” as “capable of being easily seen with normal handling of the article or container.”
Section 134.41(a), CBP Regulations (19 CFR 134.41(a)), provides that as a general rule, marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. Paper stickers or pressure sensitive labels may be used, but these must be affixed in a conspicuous place and so securely that unless deliberately removed they will remain on the article while it is in storage or on display and until it is delivered to the ultimate purchaser. (19 CFR 134.44(b)). See also 19 CFR 134.41(b).
Section 134.44, CBP Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
Under the holding of Charles A. Redden v. United States, T.D. 44964 (Cust. Ct. June 11, 1931), the country of origin of an article need not be marked in the most conspicuous place, "but merely in any conspicuous place which shall not be covered or obscured by subsequent attachments or arrangements."
In determining whether the country of origin marking “Made in China” near the center of the unfinished bottom panel of a casket is conspicuous, we are guided by the principles discussed above. We do not require country of origin marking which would detract from the appearance of the article. We require only that the location of country of origin marking be conspicuous, and not that it be in the most conspicuous location. We take into account where the ultimate purchaser expects to find country of origin marking. We are also guided by the requirement that the marking be easily found and read without strain; that the method of marking is appropriate to the nature of the article; and that the marking will be sufficiently permanent to insure that the marking will remain on the article until it reaches the ultimate purchaser unless deliberately removed. No single factor is considered conclusive in determining whether a marking meets the conspicuousness requirement of 19 CFR §134.41 and 19 U.S.C. 1304. Instead, it is the combination of factors which will determine whether the marking is acceptable.
In CBP ruling HQ 707766 (July 29, 1977), we permitted upholstered furniture to be marked with a fabric label affixed on the underside and followed our prior rulings that large pieces of furniture usually had been required to be marked in large letters on the rear, or on the underside in the case of chairs or tables. See, also, T.D. 45121 (1931)(large pieces of furniture should be marked on the back or underside).
However, in HQ 735336, dated April 27, 1994, CBP stated:
Although Customs has permitted upholstered furniture to be marked with a fabric label affixed on the underside (See HQ 707766 July 29, 1977), we do not believe that such a marking can be considered in a conspicuous location, if the tag is obscured and the marking cannot be observed without lifting up or tilting a heavy piece of furniture. Here, a purchaser could not observe the marking without lifting a heavy piece of furniture, some of which may weigh 110 pounds. An ultimate purchaser should not have to greatly manipulate an article or conduct a difficult search to observe the country of origin marking.
Caskets offered for sale from a showroom may be displayed horizontally on display racks with casket lids open to reveal their interiors. You argued that marking on the bottom of the casket was clearly available to the purchaser who examined the product. However, in NY 013043, the photograph of the unfinished bottom panel of the casket demonstrates that the country of origin marking “Made in China” near the center of the bottom panel can only be seen when the casket is lifted and stood up vertically on one end.
In NY N013043, you argued that the outside finished surfaces of the casket did not lend themselves to marking with the country of origin, and implied that the marking would detract from the overall appearance of the casket as it is being used at a funeral. Again, in HQ 735336, discussed above, CBP recognized that while the furniture was constructed of leather upholstery and that permanent stamping could mar the furniture’s appearance, we nevertheless required that the country of origin be in a location other than the bottom where it would be noticeable and legible upon casual inspection by a consumer. In that ruling, we determined that the country of origin marking could not be observed without lifting a heavy piece of furniture, some of which may weigh 110 pounds. We also determined that an ultimate purchaser should not have to greatly manipulate an article or conduct a difficult search to observe the country of origin marking. Likewise, a purchaser of a casket should not have to greatly manipulate the casket or lift it or stand it up at one end in order to find the country of origin marking.
Therefore, while we believe that a purchaser may not expect to find a country of origin marking on the finished surface of a casket, we find that the bottom of a casket is not conspicuous for purposes of country of origin marking because marking a casket with country of origin near the center of the bottom panel renders the marking difficult to locate and read without strain.
Regarding the methods and the permanency of marking, section 134.41(a), CBP Regulations (19 CFR 134.41(a)), provides that as a general rule, marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, it may be inappropriate to mark the finished surface of a casket with permanent ink, etching, or dye stamping, because each of these methods could damage the special finish, and ruin the aesthetic appeal of a casket.
Section 134.44, CBP Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. Paper stickers or pressure sensitive labels may be used, but these must be affixed in a conspicuous place and so securely that unless deliberately removed they will remain on the article while it is in storage or on display and until it is delivered to the ultimate purchaser. (19 CFR 134.44(b)). See also 19 CFR 134.41(b). Likewise, hangtags may also be used, but these must be attached in a conspicuous place and in a manner which assures that unless deliberately removed they will remain on the article until it reaches the ultimate purchaser. See 19 CFR 134.44(c).
In this case, use of a pressure sensitive label or a hangtag affixed in a conspicuous place on a casket would be sufficiently permanent to meet the requirements of 19 CFR 134.44. The marking "Made in China" on a label or hangtag affixed in a conspicuous place on a casket would be easy to find, securely affixed, and would, in our opinion, come off only if it were deliberately removed. Accordingly, the requirements of 19 U.S.C. 1304 and 19 CFR 134.44 would be satisfied and this method of marking country of origin on a casket would be acceptable.
HOLDING:
The country of origin marking “Made in China” near the center of the unfinished bottom panel of a casket does not meet the conspicuousness requirements of 19 U.S.C. 1304 and 19 CFR 134.41, in that the country of origin marking is not capable of being easily seen with normal handling of the article or container.
EFFECT ON OTHER RULINGS:
NY N013043, dated July 12, 2007, is revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division