MAR-2-05 CO:R:V:C 733880 RSD
District Director of Customs
Second and Chestnut Streets
Philadelphia, Pennsylvania 19106
RE: Internal Advice request 59/90, concerning country of origin
marking of undercarriage replacement parts for construction
equipment; Permanent, 19 CFR 134.41
Dear Sir:
This is in response to the internal advice request, dated
July 30, 1990, made by Lynn Baker of Katten, Munchin & Zavis, on
behalf of Komatsu Dresser Company (Komatsu Dresser) concerning
the country of origin marking of future shipments of imported
undercarriage replacement parts for construction equipment made
in Italy.
FACTS:
Komatsu Dresser imports undercarriage replacement parts for
use in construction equipment, including bulldozers, wheel
loaders, and crawler tractors. This construction equipment is
made in Japan by Komatsu Ltd. However, the undercarriage
replacement parts are manufactured under license in Italy by a
company called Italtractor. On March 8, 1990, U.S. Customs in
Philadelphia issued a marking notice to Komatsu Dresser regarding
a shipment of 34 cases of spare undercarriage parts imported from
Italy. These parts were marked "Made in Italy," by use of paper
adhesive stickers. Customs found that this marking did not
satisfy the country of origin marking requirements because it was
not permanent enough to remain on the parts. However, Customs
accepted the method of marking for that shipment, but stated that
future shipments must be permanently marked.
Another shipment of undercarriage spare parts arrived in
Philadelphia on July 31, 1990, marked with pressure sensitive
labels. Customs inspected the shipment and found that after
being exposed to the outdoor elements, the pressure sensitive
labels were peeling off the undercarriage parts. Customs
rejected the country of origin marking for not being
sufficiently permanent and issued another marking notice.
Komatsu Dresser agreed to remark the undercarriage parts by paint
stencilling. Customs accepted this method of marking and
released the shipment.
Komatsu Dresser now proposes to use an alternative type of
pressure sensitive labels known as "anti-sabotage" labels, to
mark the country of origin on future shipments of the
undercarriage spare parts. It is claimed that these labels are
used for applications where it is vital that the identification
tags not be removed. The importer submitted samples of these
"anti-sabotage" labels. In addition, the importer submitted
photographs to illustrate how they intend to use the labels to
mark the country of origin on the undercarriage spare parts. In
order for Customs to be to distinguish the "anti-sabotage" labels
from other the adhesive labels, Counsel for the importer has also
represented that the "anti-sabotage" labels will bear the
initials "ASL".
ISSUE:
Is the proposed method of country of origin marking by use
of a type of pressure sensitive labels known as "anti-sabotage"
labels sufficiently permanent?
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 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., 27
C.C.P.A. 297 at 302, C.A.D. 104 (1940).
Part 134, Customs 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, Customs 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. That section
further provides that the degree of permanence should be at least
sufficient to insure that in any reasonably foreseeable
circumstance the marking shall remain on the article until it
reaches the ultimate purchaser unless it is deliberately removed.
As a general rule, marking requirements are best met by
marking worked into the article at the time of manufacture. For
example, its suggested that the country of origin on metal
articles be die sunk, molded in or etched. See 19 CFR 134.41.
However, the Customs Service normally permits any reasonable
method of marking that will remain on the article during handling
until it reaches the ultimate purchaser. This includes the use
of paper sticker or pressure sensitive labels and string tags.
See HQ 703500, March 10, 1990. If paper stickers or pressure
sensitive labels are used, section 134.44, Customs Regulations
(19 CFR 134.44), provides that they 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 delivered to the ultimate purchaser.
Although, as you determined with regard to the previous
shipments of Komatsu Dresser, certain stickers and labels will
not adequately adhere to metal surfaces, we are of the opinion
that the sample "anti-sabotage" labels submitted are sufficiently
permanent that they would remain on the undercarriage spare parts
until they reach the ultimate purchaser. We note that the "anti-
sabotage" labels could not be removed from a sample metal backing
by scratching or peeling them, without destroying the labels.
However, we did not fully test the labels or expose them to the
outdoor elements and we do not know how they will perform over
time. If it is determined that these labels are not remaining on
the articles or that they become unreadable before they reach the
ultimate purchaser, a new method of country of origin marking
must be used, such as requiring that the marking be die sunk,
molded in or etched into the articles at the time of manufacture.
We suggest that future shipments of these articles be monitored
to ensure that these labels are remaining on the articles until
they reach the ultimate purchasers and that the country of origin
marking remains legible. We also note that the "anti-sabotage"
labels will be identifiable because they will bear the initials
"ASL".
HOLDING:
The country of origin marking of undercarriage spare parts
by means of pressure sensitive adhesive labels, known as "anti-
sabotage" labels is sufficiently permanent to satisfy the
requirements of 19 U.S.C. 1304, 19 CFR 134.41, and 19 CFR 134.44,
provided such labels are conspicuously placed and remain on the
articles until they reach the ultimate purchasers and that the
country origin marking remains legible.
Sincerely,
John Durant, Director
Commercial Rulings Division