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HQ 731555


July 18, 1988

MAR-2-05 CO:R:C:V 731555 LW

CATEGORY: MARKING

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?

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.

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,
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

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