MAR-2-05 CO:R:C:V 734451 KR
Ms. Carol A. Wnuk
PBB USA Inc.
434 Delaware Ave.
Buffalo, N.Y. 14202
RE: Country of origin marking of metal roof tiles; marking the
container not the individual tile.
Dear Ms. Wnuk:
This is in response to your letter dated December 17, 1991,
requesting a country of origin ruling on behalf of your client,
Dura-Loc Roofing Systems Limited, of Courtland, Ontario
(hereinafter Dura-loc), regarding metal roof tiles which you
intend to import from Canada. A sample of the finished tiles was
submitted for examination. This ruling will apply only to the
Dura-Loc roof tile described infra.
FACTS:
You state that Dura-Loc manufactures decorative roof tiles
in Canada. It intends to import the roof tiles into the U.S. for
sale to Dura-Loc USA. Dura-Loc USA will sell the tiles to a
roofer, construction company, distributor or other subsequent
purchaser. The roof tiles may be used on sloped roofs to
vertical wall framing in retro-fit or new construction on
residential, commercial, industrial and institutional structures.
You state that the roof tiles will be imported on skids and
either shrink wrapped or banded in cardboard. Each skid will
hold two piles of 150 tiles each. You state that Dura-Loc USA
will sell the tiles only banded and wrapped. However, no control
exists over a subsequent purchaser's ability to separate the roof
tiles for further resale.
You request a ruling allowing the country of origin marking
to appear on the packaging (i.e., the banded cardboard or shrink
wrap) instead of marking each individual tile.
ISSUE:
Whether the roof tiles may be banded in cardboard, or shrink
wrapped together and a marking placed on the packaging indicating
the country of origin, or whether each individual tile must be
marked with the country of origin?
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. The Court of
International Trade stated in Koru North America v. United
States, 701 F. Supp. 229, 12 CIT 1120 (CIT 1988), that "in
ascertaining what constitutes the country of origin under the
marking statute, a court must look at the sense in which the term
is used in the statute, giving reference to the purpose of the
particular legislation involved. The purpose of the marking
statute is outlined in United States v. Frielaender & Co., 27
CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that:
"Congress intended 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."
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR
134.41(b), mandates that the ultimate purchaser in the U.S. must
be able to find the marking easily and read it without strain.
An article is excepted from marking under 19 U.S.C. 1304
(a)(3)(D) and 19 CFR 134.32(d), if the marking of a container of
such article will reasonably indicate the origin of such article.
This exception is applicable if Customs is satisfied that the
marked container is which the article is imported will reach the
ultimate purchaser in all reasonably foreseeable circumstances.
Accordingly, if Customs is satisfied that the ultimate purchaser
will receive the article in a marked container and that the
ultimate purchaser can tell the country of origin of the roof
tiles by viewing the country of origin marking on the container
in which they are imported, the individual roof tiles would be
excepted from marking under this provision. Therefore, it is
necessary to ascertain who is the ultimate purchaser of the roof
tiles.
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 C.S.D. 89-47, December 8, 1988, Customs held that
the construction company that installed the imported steel
roofing structural components was the ultimate purchaser.
Similarly, in this case, we find that the actual installer of the
roof tiles is the ultimate purchaser.
The marking of the packaging in lieu of the tiles themselves
is acceptable only if Customs is satisfied that the installers of
the roof tiles will receive them in their marked container. In
HQ 731555, July 18, 1988, Customs ruled that metal straps with
plastic shrink wrap used to secure refractory bricks were
containers for purposes of 19 U.S.C. 1304(a)(3)(D) and 19 CFR
134.32(d). See also, HQ 734119, July 15, 1991. In this case we
find that banding the roof tiles in cardboard or shrink wrapping
the tiles could constitute containers for purposes of these
provisions. However, since the importer does not sell the tiles
directly to the ultimate purchaser and no evidence was presented
establishing how the tiles are sold and whether they will in all
foreseeable circumstances remain in the marked container, the
requirements for granting an exception to the individual marking
requirement pursuant to 19 U.S.C. 1304(a)(3)(D); 19 CFR
134.32(d) are not satisfied. Therefore, each tile must be
individually marked in a legible, permanent and conspicuous
manner with the country of origin.
HOLDING:
The ultimate purchasers of the roofing tiles are the actual
installers of the tiles. The individual tiles must be marked in
a legible, permanent and conspicuous manner with the country of
origin, Canada.
Sincerely,
John Durant, Director
Commercial Rulings Division