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HQ 733597
July 26, 1990

MAR-2-05 CO:R:C:V 733597 KG

CATEGORY: MARKING

District Director of Customs
Interstate 87
Champlain, N.Y. 12919

RE: Country of origin marking of imported aluminum marker shells and tubes; 19 CFR 177.9

Dear Sir:

This is in response to the Application for Further Review of Protest Number 0712-90-000176 filed on March 12, 1990, by Barnes, Richardson & Colburn, on behalf of Sanford Corporation, regarding the country of origin marking of imported aluminum marker shells and tubes.

FACTS:

Sanford Corporation imports aluminum marker shells and tubes which are used to make marker pens in the U.S. In a ruling dated December 7, 1961 (EV 363.2 H), addressed to Sanford Ink Company, Customs held that Sanford Ink Company was the ultimate purchaser of imported aluminum extruded shells used in manufacturing ink marker pens. The U.S. processing included: forming a neck on the open end of the tube; filling the tube with ink; placing a felt tip on the ferrule; sealing a cap to the ferrule and placing a removable cap over the ferrule. In HQ 732450 (September 8, 1989), addressed to a broker on behalf of another importer, Customs held that imported aluminum marker shells processed in the U.S. in a similar manner and made into marker pens in the U.S. are not substantially transformed in the U.S. and that the U.S. manufacturer is not the ultimate purchaser. Although HQ 732450 discussed RM 363.2 (March 21, 1972), which cited to the 1961 ruling, it did not expressly overrule the 1961 ruling issued to Sanford.

Sanford made 3 entries in 1989 of imported aluminum marker shells and tubes which were not marked with the country of origin based on the 1961 ruling it received. Marking duties were assessed on these entries.

ISSUE:

Whether the assesssment of marking duties was proper. 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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 177.9, Customs Regulations (19 CFR 177.9), provides that ruling letters are binding on Customs with respect to the particular transaction involving the same circumstances with respect to the person to whom the letter is addressed until the ruing letter is modified or revoked. Modification or revocation of a ruling letter shall be effected by Customs Headquarters by giving notice to the person to whom the ruling letter was addressed and, where circumstances warrant, by the publication of a notice or other statement in the Customs Bulletin. Further, 19 CFR 177.9(d)(2) states that the modification or revocation will not be applied retroactively with respect to the person to whom the ruling was issued or to any person directly involved in the transaction to which the ruling related provided that a list of specified conditions are met.

In this case, the prior ruling letter issued to Sanford Corporation was never expressly revoked or modified. Sanford Corporation was never given notice of the later ruling. Pursuant to 19 CFR 177.9, the prior ruling letter was binding on Customs and HQ 732450 could not be retroactively applied to Sanford Corporation. Therefore, the marking duties should not have been assessed.

HQ 732450 dealt with the same imported article and considered all the arguments relating to substantial transformation raised in your memorandum. We determined at that time that the aluminum marker shells and tubes are not substantially transformed in the U.S. Since HQ 732450 is in conflict with 363.2 (December 7, 1961), the 1961 ruling is hereby overruled. This letter constitutes notice to Sanford Corporation that 363.2 (December 7, 1961), issued to them has been overruled by HQ 732450.

HOLDING:

The marking duty should not have been assessed. Ruling 363.2 (December 7, 1961), is hereby overruled. Please furnish a copy of this letter and HQ 732450 to the protestant.

Sincerely,

John Durant
Director,

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