MAR-2-05 CO:R:C:V 734781 AT
Ralph H. Sheppard, Esq.
Adduci, Mastriani, Meeks and Schill
330 Madison Avenue
New York, New York 10017
RE: Country of origin marking of aluminum shells imported to be
assembled and filled; 19 CFR 134.24(c); 19 CFR 134.36(b);
"Made in U.S.A." marking; HQ 734240
Dear Mr. Sheppard:
This is in response to your letter of August 18, 1992, on
behalf of National Corporation (National), concerning the country
of origin marking requirements for aluminum shells which are
imported empty to be used in the manufacturing of marking
devices. A sample finished marker and empty aluminum shell, cost
breakdowns, as well as the complete components used in the
production of the marker were submitted for examination.
FACTS:
You state that National intends to import empty aluminum
shells from Venezuela. After importation, National will assemble
these aluminum shells with other domestic components (dispensing
tip and pressurization device) into finished markers. Once
assembled, the markers are filled with a polyurethane textile
marking paint of domestic origin. After filling and packaging
the products are sold to distributors by National. It is
represented that National does not sell empty aluminum shells.
The outside carton in which the aluminum shells are imported
is marked with the country of origin. As imported, the shells
are printed with the product's description, directions for use,
and the weight of the contents, the customer's logo, name, and
address, and other product information, including the words,
"Made in U.S.A.", which refer to the contents of the aluminum
shells and not to the shells themselves. For purposes of this
ruling the accuracy of the representation "Made in U.S.A." as to
the contents of the marker is assumed. A ruling is requested
that the imported aluminum shells be excepted from marking as to
their foreign origin.
ISSUE:
1) Is National the ultimate purchaser of disposable containers
which are imported to be filled within the meaning of 19 CFR
134.24(c), such that the empty aluminum shells may be excepted
from individual marking?
2) Does the presence of the words "Made in U.S.A." on the empty
imported aluminum shells require, as provided by 19 CFR
134.36(b), that the empty shells be individually marked as
articles of foreign 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 its 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.
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and the exceptions of
19 U.S.C. 1304. Subpart C of Part 134 (19 CFR 134.21 et seq),
sets forth the rules for the marking of containers and holders.
We are satisfied that the imported aluminum shells are of the
type defined as disposable containers ("[o]rdinarily discarded
after the contents have been consumed") in section 134.24(a) of
Subpart C, Part 134 which, when imported to be filled, may be
excepted from individual country of origin marking pursuant to 19
U.S.C. 1304(a)(3)(D). Applying 19 CFR 134.24(c), National
Corporation, which conducts the filling of the aluminum shells in
the U.S., is the ultimate purchaser of the shells.
The final issue concerns the appearance on the imported
shells of U.S. addresses and the words, "Made in U.S.A.". In
some cases, pursuant to 19 CFR 134.36(b), the appearance of such
words would preclude an article's eligibility for exception from
marking. Section 134.36(b), provides that an exception from
marking shall not apply to an article or retail container bearing
any words, letters, names, or symbols described in 19 CFR 134.46
or 134.47 which imply that an article was made or produced in a
country other than the actual country of origin.
In this case, there is no implication that the aluminum
shell is of U.S. origin; the reference plainly is to its future
U.S. contents. Stated another way, such marking would in no way
mislead National Corporation, the ultimate purchaser of the
aluminum shells, which has ample knowledge of the reasons why
such marking is present. Equally, assuming that the U.S.
addresses and the statement "Made in U.S.A.", are accurate with
respect to the production of the contents of the finished
markers, the purchasers of those products would not be misled as
to their origin. Under these circumstances, 19 CFR 134.36(b)
does not apply to preclude the imported aluminum shells from
being excepted from individual country of origin marking pursuant
to 19 CFR 134.24(c)(1). See HQ 734240 (December 24, 1991)
(imported collapsible tubes and aerosol containers imported to be
filled solely with domestic contents in the U.S. may be imported
printed with U.S. addresses and the marking "Made in U.S.A.", and
19 CFR 134.36(b) does not apply). Provided that the outside
container in which the aluminum shells are imported are marked
with the country of origin when they reach the ultimate
purchaser, National Corporation, the country of origin marking
requirements have been satisfied.
With respect to the marking "Made in U.S.A." printed on the
aluminum shell, we advise you to contact the Federal Trade
Commission, Division of Enforcement, 6th & Pennsylvania Avenue,
NW, Washington D.C. 20508 before National undertakes to mark its
finished product in that fashion, since use of the phrase "Made
in U.S.A." is under the agency's jurisdiction.
HOLDING:
The imported aluminum shells are disposable containers
within the meaning of Subpart C, Part 134, Customs Regulations.
As such, when imported to be filled the importer, National
Corporation, is their ultimate purchaser, and they may be
excepted from individual country of origin marking pursuant to 19
CFR 134.24(c)(1). In this case the presence of U.S. addresses
and the words "Made in U.S.A." are not improper implications
within the meaning of 19 CFR 134.36(b).
Sincerely,
John Durant, Director
Commercial Rulings Division