HQ 0731937 - Country of origin marking of imported sewer cap castings and gate valves - United States International Trade Commision Rulings

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HQ 731937
February 27, 1990

MAR-2-05 CO:R:C:V 731937 KG

CATEGORY: MARKING

Robert Slomovitz
Chief, National Import Specialist Branch 1 New York Seaport
New York, N.Y.

RE: Country of origin marking of imported sewer cap castings and gate valves

Dear Mr. Slomovitz:

This is in response to your undated memorandum (IA 88/10, CLA-2-06:S:N:N1:115-31), referred to your office by Customs in San Diego requesting internal advice regarding the country of origin marking of imported sewer cap castings and gate valves.

FACTS:

Imported sewer cap cast iron castings and gate valves were marked with the country of origin on the bottom portion. Although no description of a sewer cap cast iron casting was provided, a sewer cap is not a manhole cover, assembly or frame. Many of the castings are marked "SEWER O.M." or "WATER O.M." It is contended that the initials O.M. is an abbreviation of an area in San Diego called Otay Mesa, a known geographical area.

ISSUES:

Whether sewer cap cast iron castings and gate valves are within the scope of 19 U.S.C. 1304(e).

Whether the initials "O.M." are a locality in the U.S. for the purposes of 19 CFR 134.46.

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 (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. Friedlaender & Co., 27 CCPA 297, 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 207 of the Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98 Stat. 2976 (1984) added a new 19 U.S.C. 1304(e), which requires that imported manhole rings, frames, covers and assemblies thereof be marked with the country of origin on the top surface by means of die stamping, cast-in-mold lettering, etching, or engraving. Both the Senate Report, S. Rep. No. 98- 308, and the House Conference Report state that section 207 is intended to cover imported pipe, pipe fittings, compressed gas cylinders, and manhole rings or frames, covers, and assemblies thereof. There is no mention in the legislative history of section 207 of any intent to cover sewer caps or gate valves. Because section 207 does specifically enumerate certain items rather than a general category of items, it is assumed that Congress intended for this provision to only cover those specifically enumerated items. Section 207 will be construed narrowly to only apply to manhole covers, frames and assemblies thereof.

Since sewer caps and gate valves are not specifically listed in section 207, these items are subject to the general marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Pursuant to section 134.41, Customs Regulations (19 CFR 134.41), the marking must be legible, permanent and conspicuous. The term "ultimate purchaser" is defined in section 134.1(d), Customs Regulations (19 CFR 134.1(d)), as generally the last person in the U.S. who will receive the article in the form in which it was imported." Further, 19 CFR 134.1(d)(3) states that if an article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.

Although no information was provided concerning the use of the imported sewer caps and gate valves, if they are purchased by and for the use of a municipality or other local government agency, such municipality or agency would be the last person in the U.S. to receive them in the form in which they were imported and the ultimate purchaser of these items for the purposes of 19 U.S.C. 1304. Although citizens of the municipality pay taxes which ultimately are used to pay for all municipal purchases, citizens are not involved in the purchasing decision. The purpose of the marking statute, as stated above, is to assist people in making informed buying choices. Once the purchase transaction is completed by the fully informed purchaser, the goal of 19 U.S.C. 1304 is accomplished. Since the ultimate purchaser in this case is the local government authority responsible for purchasing sewer caps and gate valves, there is no need to mark the top of these items. As long as the ultimate purchaser is informed of the country of origin in a permanent and conspicuous manner, 19 CFR 134.41 is satisfied.

The second issue presented involves section 134.46, Customs Regulations (19 CFR 134.46), which requires that when the name of any city or locality in the U.S. appears on an imported article or its container, that the name of the country of origin preceded by the phrase "Made In," "Product of," or other words of similar meaning appear legibly, permanently, in close proximity, and in comparable size. In a similar case, Custom ruled in HQ 729378 (May 28, 1986), that the letters "KC MO", an abbreviation for Kansas City, Missouri, marked on a manhole cover did indicate a locality in the U.S. thereby triggering the requirements of 19 CFR 134.46. However, the issue you raised involves an abbreviation referring to a local water or sewer district which would not be readily associated with a well known locality. Therefore, the letters "O.M.", which are an abbreviation for a local water or sewer authority, does not trigger the requirements of 19 CFR 134.46.

HOLDING:

Imported sewer cap cast iron castings and gate valves are not subject to the special marking requirements of 19 U.S.C. 1304(e). The ultimate purchaser of a sewer cap or gate valve is the local government purchasing authority responsible for ordering these parts. Therefore, there is no need to mark the top surface of the imported sewer cap castings and gate valves. The letters "O.M." on a sewer cap, which refers to Otay Mesa, a local water or sewer authority, does not trigger 19 CFR 134.46.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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