MAR-2-05 CO:R:C:V 734635 KR
Mr. John J. Peters
WESSC International
1950 Sawtelle Boulevard
Suite 360
West Los Angeles, CA 90025
RE: Country of Origin Marking for Airline Washcloths;
Ultimate Purchaser; Airlines; 19 U.S.C. 1304(a)(3)(D);
19 CFR 134.32(d); 19 CFR 134.1(d).
Dear Mr. Peters:
This is in response to your letter of April 21, 1992,
concerning the country of origin marking requirements for airline
washcloths imported from either China or Taiwan.
FACTS:
The washcloths will be imported into the U.S. from China or
Taiwan. You state that the washcloths you have been importing
are individually marked with the country of origin. You no
longer wish to individually mark the washcloths with the country
of origin, but instead wish to mark only the bulk packaging with
the country of origin. After importation the washcloths will be
sold to airlines in the U.S. You state that the washcloths will
not be sold or given away by the airlines, but will remain the
property of the airline.
ISSUE:
Who is the ultimate purchaser of the washcloths used on an
airline?
Are the washcloths excepted from country of origin marking?
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. 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 are the product. Part 134,
Customs Regulations (19 CFR Part 134), implements the country of
origin marking requirements and exceptions of 19 U.S.C. 1304.
Among the exceptions to country of origin marking is 19
U.S.C. 1304(a)(3)(D), also provided for in section 134.32(d),
Customs Regulations (19 CFR 134.32(d)). That section provides
that articles for which the marking of their containers will
reasonably indicate the country of origin of the articles may be
excepted from country of origin marking. However, for the
exception to apply Customs must be satisfied that the articles
will reach the "ultimate purchaser" in the original, properly
marked containers in which the articles were imported. 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.
In HQ 734524 (July 30, 1992), reasoning that the ultimate
purchaser of frozen food meals would be the airline rather than
the passenger, Customs found that such frozen meals would
probably be excepted from individual marking so long as the
ultimate purchaser (the airline) received the meals in bulk with
proper marking on the outermost containers in which they were
imported. See also Information Letter, HQ 732988 (May 30, 1990).
In Legal Determination 79-0382 (HQ 710493 dated July 17,
1979), Customs found that the ultimate purchaser was not
necessarily the ultimate user or consumer. In that case,
dinnerware was imported for sale by the importer to a company
that resold it to an airline company for its use in serving in-
flight meals. The airline company received the dinnerware in the
original, unopened and properly marked bulk containers. There
Customs found that the ultimate purchaser was the airline
company, not the airline passenger, and the dinnerware was
excepted from marking as provided for in 19 U.S.C. 1304(a)(3)(D).
However in HQ 724335 (January 16, 1984), Customs found that
airline passengers were the ultimate purchasers of plastic cups
and glasses of durable nature which the passengers could keep.
Accordingly, the cups and glasses had to be marked with country
of origin. The distinguishing factor between these two decisions
which was determinative as to whether the imported goods should
be marked was the fact that in the former decision the passengers
could not take the goods with them for use elsewhere, and in the
latter decision they could. In HQ 729477 (May 2, 1986), Customs
found that the ultimate purchasers of air sickness bags were the
individual airline passengers who received the bags incidental to
the service of air transport for which consideration was paid and
for whose convenience they were made available -- hence, the bags
had to be marked with country of origin. However, HQ 729477 was
specifically revoked in HQ 734524 (July 30, 1992).
For what purpose and in what manner imported goods are to be
used has been the focus of several marking decisions which are
relevant in the instant case. When imported goods are purchased
by an employer for use exclusively at work by its employees, the
imported merchandise has been excepted from individual country of
origin marking. See HQ 734304 (January 28, 1992) (disposable
industrial work coveralls distributed free of charge to employees
at an industrial plant (the ultimate purchaser) for use on the
job are excepted from individual marking); and HQ 732793
(December 20, 1989) (employers are the ultimate purchasers of
industrial work gloves distributed free of charge to employees on
the job for use at work; such gloves are excepted from individual
marking). Similarly, imported goods purchased by hospitals for
use exclusively on the premises by staff or patients have also
been excepted from individual marking. HQ 730945 (August 11,
1988) (hospitals are the ultimate purchasers of imported patient
identification bracelets; such items are excepted from individual
marking); HQ 715640 (June 16, 1981) (hospitals are the ultimate
purchasers of imported disposable paper shoe covers, head covers,
drape sheets, gowns, towels and other similar products, none of
which have to be individually marked to indicate country of
origin); HQ 723745 (February 6, 1984) (hospitals are the ultimate
purchasers of imported surgical masks; such items do not have to
be individually marked); and HQ 730840 (January 12, 1988)
(hospitals are the ultimate purchasers of imported surgical
gloves; such gloves are excepted from individual marking).
Like imported items purchased by employers and distributed
to their employees for use only on work premises and like the
various imported items used by hospital staff and patients while
on hospital premises, prepared frozen meals are purchased by the
airline only for passenger consumption on the airplane during
flight. In none of these situations is the imported merchandise
ever otherwise sold or intended for retention and use other than
on site or in flight. Accordingly, it is our opinion that the
ultimate purchaser of the washcloths is the airline, and not the
airline passenger. Therefore, so long as the airline continues to
receive the washcloths in properly marked containers, the
individual washcloths may be excepted from country of origin
marking pursuant to 19 CFR 134.32(d).
It is noted that special marking requirements are applicable
to textile articles under the Textile Fiber Products
Identification Act ("TFPIA"), and its regulations. Thus, while
Customs is prepared in this instance to allow the requested
exception from country of origin marking, there may remain a
requirement under the TFPIA to mark each washcloth with a sewn on
or otherwise affixed label. We, therefore, suggest that you
consult the Federal Trade Commission and the appropriate
regulations for guidelines on this point.
HOLDING:
For purposes of country of origin marking, the ultimate
purchaser of airline washcloths is the airline and not the
airline passenger. Accordingly, pursuant to 19 U.S.C.
1304(a)(3)(D) and 19 CFR 134.32(d) the airline washcloths are
excepted from individual country of origin marking so long as the
ultimate purchaser, the airline, receives the washcloths in
containers which are properly marked with the country of origin.
Sincerely,
John Durant, Director
Commercial Rulings Division