MAR-05 RR:TC:SM 559778 BLS
Mr. Mike Zatezelo
Capitol Manufacturing
675 Brooksedge Boulevard
Westerville, Ohio 43086-6103
RE: Country of origin marking of pipe nipples imported from
Canada; 19 U.S.C.
1304(c); HRL 559285
Dear Mr Zatezelo:
This is in reference to your letter dated April 2, 1996,
concerning country of origin marking of certain pipe nipples to
be imported from Canada. Samples of the products have been
submitted.
FACTS:
You state that the pipe nipples to be imported are the
following:
1/2" x Close Std. Black
Nipple
1 1/4" x Close Std. Black
Nipple
1/2" x 1 1/2" Std. Galvanized
Nipple
1 1/2" x 2" Std. Galvanized
Nipple
You believe that these items cannot be die-stamped, cast in
mold lettering, etched, engraved, or paint stenciled without
damaging the integrity of the product.
In support thereof, you enclose signed statements from several
customers, indicating that marking the product on the thread will
affect the integrity of the pipe. As a result, you request an
exemption from marking the pipe nipples with any of the described
methods, and request that the country of origin be placed on a
label on the cartons.
ISSUE:
Whether, under the provisions of section 304(c) of the
Tariff Act of 1930, as amended (19 U.S.C. 1304(c)), the subject
pipe nipples are required to be marked
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with the country of origin by die-stamping, cast-in-mold
lettering, etching, engraving, or paint stenciling.
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 at
the time of purchase the ultimate purchaser may, by knowing where
the goods are produced, be able to buy or refuse to buy them, if
such marking should influence his will." United States v.
Friedlaender & Co, v. United States, 27 C.C.P.A. 297 at 302
(1940).
Section 207 of the Trade and Tariff Act of 1984 (Pub. L.
98-573), amended 19 U.S.C. 1304 to require, without exception,
that all pipe, tube, and pipe fittings of iron or steel be marked
to indicate the proper country of origin by means of die
stamping, cast-in-mold lettering, etching or engraving. See 19
U.S.C. 1304(c). However, after the enactment of Section 207,
it was brought to the attention of Customs that certain pipe and
pipe fittings of iron and steel cannot be marked by any of the
methods prescribed by the section without rendering such articles
unfit for the purpose for which they were intended. Customs
solicited comments on the subject, and issued T.D. 86-15
published in the Federal Register on February 5, 1986, 51 Fed.
Reg. 24, setting forth certain categories of articles which may
be marked by alternative methods. For certain categories of
articles, paint stenciling was the requisite method. For other
categories, paint stenciling or tagging of the bundles or the
containers was permitted. These categories included thin-walled
pipes and fittings, small-diameter pipes and fittings, other
fittings, line pipe, coated pipe, and spun iron pipe. These
categories of articles are described in detail in T.D. 86-15.
In addition, for ornamental pipes, tube, and fittings of all
types, having a
highly polished surface, T.D. 86-15 permitted marking by means of
a durable tag or sticker securely affixed or marking the
protective wrapper.
In 1986, Congress enacted Pub. L. 99-514 which amended 19
U.S.C. 1304(c) to authorize such alternative methods of marking
if, because of the nature of the article, it is technically or
commercially infeasible to mark by one of the four
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prescribed methods. 19 U.S.C. 1304(c)(2) provided that in such
case the article may be marked "by an equally permanent method of
marking such as paint stenciling or, in the case of small
diameter pipe, tube, and fittings, by tagging the containers, or
bundles."
In order to carry out Congressional intent, on July 22,
1992, Customs published, in the Federal Register, T.D. 92-70
which amended T.D. 86-15 to allow the country of origin marking
of pipe, tube, and fittings by tagging the bundles or containers,
but only with respect to small diameter pipe, tube, and fittings.
T.D. 92-70 specifically provided that pipe, tubes and fittings
which could not be marked by a prescribed method must be marked
by "paint stenciling or an equally permanent method." The
notice indicated that Customs does not consider tagging the
bundles or containers an equally permanent marking method as
paint stenciling. Therefore, marking pipe, tube, and fittings
by tagging the bundles or containers is acceptable only for small
diameter product. In T.D. 86-15, Customs determined that small
diameter product included fittings that have a nominal diameter
of one-fourth inch or less and pipe with an inner diameter of 1.9
inches or less.
Customs recognized in T.D. 92-70 that there might be some
cases where paint stenciling or an equally permanent method of
marking could damage the product and render it unfit for the
purpose it was intended. Customs indicated that in such
instances it would consider alternative methods of marking on a
case-by-case basis.
On December 8, 1993, as part of the North American Free
Trade Agreement ("NAFTA") Implementation Act (Pub. L. 103-182),
Congress again amended the country of origin marking provisions
for pipes, tubes and pipe fittings. Section 207(a) of the Act
revised the requirements for marking the country of origin for
pipes of iron, steel, or stainless steel by adding a fifth
acceptable statutory method of marking -- continuous paint
stenciling. See 19 U.S.C. 1304(c)(1). In addition, 19 U.S.C.
1304(c)(2) was amended by eliminating the reference in the
statute which indicated that paint stenciling was an example of
an equally permanent method of marking that could be used if it
was technically or commercially infeasible to mark by one of the
statutory methods.
By enacting this amendment to 19 U.S.C. 1304(c), Congress
reaffirmed its decision that pipes must be permanently marked by
only certain methods. Only in cases where it is technically or
commercially infeasible to mark by one of the described methods
can an alternative be considered and that alternative must be
equally as permanent. Furthermore, tagging bundles or
containers will be acceptable only in the case of small diameter
pipe, tube, and fittings.
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In Headquarters Ruling Letter (HRL) 559285 dated February 1,
1996, also involving Capitol Manufacturing, we found that the
sample pipe fittings submitted in that case did not fall within
the specifications of "small diameter" pipe as described in T.D.
86-15. We also found that it was technically feasible to mark
the articles by one of the five statutorily prescribed methods,
and that no evidence had been submitted regarding the commercial
infeasibility of the prescribed methods of marking.
Accordingly, we held that the articles submitted in that case
were required to be marked as a product of Canada by one of the
five permanent methods of marking prescribed in 19 U.S.C.
1304(c)(1).
The Customs Office of Laboratories and Scientific Services
has examined the four samples submitted with this ruling request
and has similarly concluded that they do not meet the criteria
for "small diameter" pipe as defined in T.D. 86-15.
We also note that the submitted statements address only the
issues of marking applied to the "threads" and "inside diameter"
of the pipe nipples. In this regard, two of the samples seem to
be "close" (fully threaded) nipples to which the statements were
apparently intended to apply while the other two samples have a
shoulder or unthreaded portion.
With regard to the "close" nipples, the submitted statements
do not address paint stenciling of these items. The Office of
Laboratories and Scientific Services notes that paint stenciling
is an acceptable method of marking for industrial purposes and is
of the opinion that this manner of marking should not affect the
structural integrity of these articles. That office believes
that, with the proper equipment and/or resources, paint
stenciling on the "close" nipples can be done in an efficient and
cost-effective manner. Further, it is their opinion that the
other two samples could be etched, engraved and paint stenciled
on the shoulder or unthreaded portion without affecting their
structural integrity. Accordingly, it is our opinion that it is
both technically and commercially feasible to mark each of the
subject pipe nipples with the country of origin by one of the
five statutorily-prescribed methods.
HOLDING:
In accordance with the requirements of section 304(c) of the
Tariff Act of 1930, as amended (19 U.S.C. 1304(c)), the subject
pipe nipples are required to be marked
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with the country of origin by die-stamping, cast-in-mold
lettering, etching, engraving, or paint stenciling.
A copy of this ruling 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
Tariff Classification Appeals Division