MAR-05 RR:CR:SM 561254 KKV
Jesse Wilhoite
Bugei Trading Company
1070 Commerce Street
Suite I
San Marcos, CA 92069
RE: Country of origin marking requirements applicable to reproduction Samurai swords; 134.43(a); “steels”
Dear Mr. Wilhoite:
This is in response to your letter dated November 23, 1998, addressed to the Director, National Commodity Specialist Division, which has been forwarded to our office for response. We regret the delay in processing.
FACTS:
You indicate that Bugei Trading Company, Inc. has contracted with a manufacturer in China to make Samurai swords that accurately replicate the Japanese swords used by the Samurai class of warriors in feudal Japan. The swords will consist of hand made forged and folded steel blades, fitted to painted wooden scabbards and handles, also hand made, with hand forged and finished decorative hardware. The swords will be made to historical specifications including size, grind of steel, curve of blade, and replication of historical sword guards and fittings and will be hand inscribed with Chinese/Japanese Kanji by the swordsmith upon the steel tang and will be presented with a storage bag and cleaning supplies.
We are informed that the finished swords will be purchased by collectors, investors and period enthusiasts who require authenticity in these sword replicas, which are said to be works of art whose value, predicated upon the swords remaining in an authentic state of preservation in every detail, will increase over time.
Asserting that no true and authentic replica of a Samurai sword could have any other markings other than the swordsmith’s mark upon the blade tang, you assert that
permanent marking of the country of origin will destroy the integrity of the swords, and thus their investment and collectable value. Therefore, you request an exception from the special marking requirements of 19 CFR 134.43, requesting permission to mark the country of origin upon the swords with a non-permanent paper sticker label.
ISSUE:
Whether imported reproduction Samurai swords must be permanently marked in accordance with the special marking requirements of 19 CFR 134.43(a).
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 its 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. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are 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 C.A.D. 104 (1940).
Special marking requirements for designated articles are set forth at 19 CFR 134.43(a), which provides:
Articles of a class of 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...: knives, forks, steels, cleavers, clippers, shears, scissors, safety razors, blades for safety razors, surgical instruments, pliers, pincers, nippers, and hinged hand tools for holding and splicing wire, vacuum containers, and parts of the above articles.
This office has stated that this provision is to be narrowly construed, and that the special marking requirements apply only to those articles specifically enumerated by name in the regulation. See Headquarters Ruling Letter (HRL) 733633, dated June 3, 1991. Thus, the special marking requirements of 19 CFR 134.43 will be applicable only where the reproduction samurai swords are of a “class or kind” of those objects listed by name, one category of which is “steels.”
In determining what articles are encompassed by the term “steels,” we note that prior to its amendment in 1989, previous versions of section 134.43(a) listed both the names of the articles subject to the requirements as well as the provisions of the Tariff Schedules of the United States (TSUS) in which these articles were classified. See Treasury Decision (T.D.) 89-1. Examination of these subheadings reveals that they encompassed utility and working tools and would not have encompassed the swords under consideration here. Additionally, while the current Harmonized Tariff Schedule of the United States (HTSUS), uses the term “steels” in subheading 8205.51.15, HTSUS, in connection with “Carving and butcher steels, with or without handles,” the subject articles appear to be properly classifiable under subheading 9307.00.00, HTSUS. Accordingly, we find that the reproduction samurai swords are not within a "class or kind" of any of the articles listed in 19 CFR 134.43, and are not subject to its special marking requirements.
However, the imported swords must still meet the general requirements for permanency and conspicuousness under 19 U.S.C. 1304, as implemented by 19 CFR 134.41(b) and 19 CFR 134.44(b). The former provides that the marking shall be of a degree of permanence sufficient to insure that in any reasonably foreseeable circumstances the marking will remain on the article until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. Further, the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. With specific reference to labels, 19 CFR 134.44(b) provides that labels or paper stickers 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.
No details have been provided regarding either the precise manner in which the swords will be presented for sale or the size and proposed placement of an adhesive sticker displaying the country of origin. It is noted that experience with hand tools of iron or steel has demonstrated that the practice of affixing stickers or labels to such articles has not always served to satisfy the country of origin marking requirements. At times stickers or labels on these articles have tended not to withstand normal handling during shipping and distribution, and thus have not met the standard of permanence for stickers and labels set forth at sections 134.41(b) and 134.44(b), Customs Regulations (19 CFR 134.41(b) and 19 CFR 134.44(b)). However, the placement of a sticker (or hang tag) on the blade would be acceptable provided that, at the time of entry, Customs is satisfied that the sticker (or hang tag) is sufficiently affixed to remain on the blade until it reaches the ultimate purchaser. Additionally, under 19 CFR 134.32(d), if the swords are imported in boxes which are properly marked to indicate their country of origin, and Customs is satisfied that the swords will reach the ultimate purchaser in such boxes, then the swords may be excepted from individual marking, provided that the container marking is sufficient to meet the general requirements for conspicuousness and legibility.
HOLDING:
Imported reproduction samurai swords are not subject to the special marking requirements of 19 CFR 134.43(a). However, in meeting the general requirements of 19 U.S.C. 1304, any paper adhesive labels or hang tags must meet the standard of permanence and conspicuousness set forth at 9 CFR 134.41(b) and 19 CFR 134.44(b).
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