MAR-2-05 CO:R:C:V 731555 LW
Mr. Kirk R. Irwin
Vice President - Manufacturing and
Engineering
The J.E. Baker Company
P.O. Box 1189
York, PA 17405
RE: Country of origin marking requirements for refractory bricks
Dear Mr. Irwin:
This is in response to your letter of June 27, 1988,
requesting a ruling on country of origin marking requirements for
refractory bricks to be imported from Mexico by J.E. Baker
Company (the importer).
FACTS:
Based on your letter, we understand that the importer is
contemplating importing refractory bricks from Mexico. These
bricks are sold exclusively to industries for use in the lining
of kilns and steelmaking vessels. As you explained in a phone
conversation with a member of my staff on July 12, 1988, the
bricks are cubed, placed on pallets, covered by plastic shrink
wrap, and then secured by metal straps. In addition, a card
board wrapper with the name of the company, and other product
information will be placed underneath the metal banding. When
repackaging is necessary because the U.S. purchaser will purchase
less than a full pallet of bricks, the importer does the
repackaging. The new container will be a smaller pallet shrink
wrapped and banded. In all cases either the outer container (the
strapping or the shrink wrap), or the cardboard wrapper will be
marked "Made in Mexico." If the importer repacks the bricks the
new container will also be marked "Made in Mexico."
ISSUE:
May metal straps and plastic shrink wrap used to secure
bricks be considered a container for purposes of country of
origin marking regulations?
Is it acceptable to mark the bricks' containers rather than
each individual brick with the country of origin?
- 2 -
When the importer repacks bricks in smaller units, using
metal straps and shrink wrap, which will be sold to the ultimate
purchaser, is marking the repacked container sufficient to comply
with marking requirements?
LAW AND ANALYSIS:
With regard to the first issue, section 304 of the Tariff
Act of 1930, as amended (19 U.S.C.1304), requires that, unless
excepted, every article of foreign origin (or its container)
imported into the United States 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 the English name of the
country of origin of the article.
As you are aware, Customs has previously ruled that metal
strapping used to secure pavestones would be considered a
container for purposes of complying with the marking
requirements. (709337 JB; October 23, 1978; 708694 B; February
27, 1978). Customs has also determined that plastic shrink wrap
covering a pallet of bricks would be considered a container.
(700935; December 5, 1972). In view of these previous rulings,
it is our opinion that the metal straps and shrink wrap used to
secure pallets of bricks may be considered a container under the
marking law and regulations.
Once it has been determined that the metal straps and
plastic shrink wrap may be considered a container, we turn to the
second issue. As indicated, 19 U.S.C. 1304 requires that every
article of foreign origin (or its container) must be marked
conspicuously, legibly, indelibly and permanently so as to
indicate to the ultimate purchaser the English name of the
country of origin of the article.
Section 134.1(d)(1), Customs Regulations (19 CFR
134.1(d)(1)), states that if an imported article will be used in
manufacture, the manufacturer may be the "ultimate purchaser" if
he subjects the imported article to a process which results in a
substantial transformation of the article, even though the
process may not result in a new or different article. In this
case, because the bricks are used by manufacturers in the lining
of kilns and steelmaking vessels, the bricks are substantially
transformed, and the manufacturers become the ultimate
purchasers. If these manufacturers are the exclusive purchasers
of the bricks, then the bricks need to be marked in such a way
which will indicate to them the country of origin.
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Section 134.32(d), Customs Regulations (19 CFR 134.32(d)),
provides that articles for which the marking of the containers
will reasonably indicate the country of origin of the articles,
are excepted from the country of origin marking requirements of
19 U.S.C. 1304 and Part 134, Customs Regulations (19 CFR Part
134). Because the manufacturers are the ultimate purchasers of
the bricks, marking their containers will reasonably indicate the
articles' country of origin. If the packages of brick will be
broken apart and sold individually, or other than on pallets
secured by metal straps and shrink wrap, then each brick must be
marked with the country of origin.
If the importer's U.S. address, or another reference to the
U.S. appears on the cardboard wrapper, or another part of the
container, section 134.46, Customs Regulations (19 CFR 134.46),
requires that the name of the country of origin preceded by "Made
in," "Product of," or other words of similar meaning shall
appear, legibly and permanently, in close proximity to the U.S.
address or reference and in at least a comparable size. The
purpose of this section is to prevent the possibility of
misleading or deceiving the ultimate purchaser.
In accordance with section 134.41(b), Customs Regulations
(19 CFR 134.41(b)), whether the country of origin is marked on
the cardboard wrapper, the metal strapping, or the plastic shrink
wrap, the degree of permanence of the marking on the containers
should be at least sufficient to insure that in any reasonably
foreseeable circumstance, the marking shall remain on the
container until it reaches the ultimate purchaser unless it is
deliberately removed. The marking must survive normal
distribution and store handling. The ultimate purchaser in the
U.S. must be able to find the marking easily and read it without
strain. In accordance with this requirement, if the country of
origin is to be marked on the cardboard wrapper it must be held
in place securely by the metal straps. If the country of origin
is to be marked on the shrink wrap, the marking may not be
obscured by the metal straps, or the cardboard wrapping.
Concerning the third issue, section 134.26, Customs
Regulations (19 CFR 134.26), which concerns imported articles
repacked or manipulated, requires that when an article is
intended to be repacked after its release from Customs custody,
or if the district director having custody of the article has
reason to believe that the article may be repacked after its
release, the importer must certify to the district director that
if the importer does the repacking, he shall not obscure or
conceal the country of origin marking appearing on the article,
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or else the new container shall be marked to indicate the country
of origin of the article in accordance with country of origin
marking regulations. The importer or his authorized agent must
sign a statement to this effect. Thus, if the repacked bricks
are sold exclusively to the ultimate purchaser, as indicated
above, marking the container satisfies country of origin marking
requirements.
HOLDING:
In view of the above considerations, the bricks' containers
may be marked with the country of origin by marking the metal
straps, the shrink wrap, or the cardboard wrapper in a
conspicuous, legible, indelible, and permanent manner. If the
bricks are repackaged the importer must certify to the district
director having custody of the articles that he will mark them in
accordance with country of origin marking regulations.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch
1cc: CO:R:C:V:LWEDDELL:LDC:7/15/88
Mr. Kirk R. Irwin
Vice President - Manufacturing and
Engineering
The J.E. Baker Company
P.O. Box 1189
York, PA 17405