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HQ 733187


February 12, 1991

MAR 2-05 CO:R:V:C 733187 RSD

CATEGORY: MARKING

Area Director of Customs
Newark International Airport
Newark, New Jersey 07114

RE: Country of origin marking of imported steel bands used to bundle imported tin-lead ingots; J-list; 19 CFR 134.33

Dear Sir:

This is in response to your request for internal advice concerning a letter dated March 9, 1990, submitted by E. Thomas Honey of Barnes, Richardson & Colburn, on behalf of ABB Trading (U.S), Inc., concerning imported steel bands used to bundle imported tin-lead ingots.

FACTS:

This matter arises in the context of a penalty case involving the failure to mark the country of origin of tin-lead ingots on the steel bands that were used to hold the ingots together. By letter dated March 9, 1990, the importer, through its attorney, wrote directly to Customs Headquarters requesting a ruling on whether the steel bands had to be marked with the country of origin of the ingots. A member of your staff has requested us to review the letter and treat it as an internal advice request in accordance with Part 177, Customs Regulations (19 CFR Part 177). It is our understanding that action on the penalty matter (case no. 90-4601-20233) has been suspended pending our reply.

ISSUE:

Do imported steel bands used to bundle imported tin-ingots have to be marked with the country of origin of the ingots even though both the bands and the ingots are on the J-list?

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 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. United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Certain classes of articles which are specified in section 134.33, Customs Regulation (19 CFR 134.33), known as the "J-list," are excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(J). 19 CFR 134.33 further provides that if an article included on the "J-list" is imported in a container, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents.

The importer presents two arguments why the steel bands should not be marked with the country of origin of the ingots. First, metal bands should not be treated as a container for purposes of 19 CFR 134.33. Second, steel bands, themselves are on the "J-list," and should be excepted from the country of origin marking requirements on this basis.

With respect to the first argument, Customs has issued a number of rulings determining that metal bands are considered containers for country of origin marking purposes. See C.S.D. 79-205, HQ 707810, October 23, 1978; HQ 731768, December 8, 1988; HQ 731335, July 28, 1988; and HQ 731555, July 18, 1988. Although these rulings specify that metal bands are considered containers for purposes of qualifying for an exception from marking under 19 U.S.C. 1304(a)(3)(D), we see no reason why metal bands should not be considered containers for purposes of 19 CFR 134.33. First, we are unpersuaded by the importer's arguments that steel bands should be considered containers only when such a determination would ease the marking requirements but not when such determination would result in a more restrictive interpretation of the marking statute. If metal bands are treated as containers for purposes of qualifying for an exception from marking under 19 U.S.C. 1304(a)(3)(D), they also should be treated as containers for marking J-listed articles under 19 U.S.C. 1304(a)(3)(J) and 19 CFR 134.33. Second, we believe the requirement to mark the container of a "J-list" article with the country of origin of its contents is to ensure that the ultimate purchaser is advised of the country of origin of the article whenever possible. Requiring country of origin marking on the metal bands is consistent with this interpretation. Finally, the steel bands that were used to bundle the ingots in this case fit within a commonly understood idea of a container, as something that holds something. Accordingly, in C.S.D. 89-102, dated May 16, 1989, Customs determined that metal bands holding steel bars are considered containers under 19 CFR 134.33. We see no basis for concluding that steel bands used to hold ingots are not containers within the meaning of 19 CFR 134.33.

The importer's second argument is that the steel bands are excepted from marking because such articles are included on the J-list. It is argued that the language of 19 U.S.C. 1304(b) regarding the marking of containers, dictates that containers are entitled to the same exceptions to marking as other articles. 19 U.S.C. 1304(b) specifies:

Whenever an article is excepted under subdivision (3) of subsection (a) of this section from the requirements of marking, the immediate container, if any, of such article, or such other container or containers of such article as may be prescribed by the Secretary of the Treasury, shall be marked in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of such article, subject to all provisions of this section, including the same exceptions as are applicable to articles under subdivision (3) of subsection(a) of this section. If articles are excepted from marking requirements under clause (F),(G), or (H) of subdivision (3) of subsection (a) of this section, their usual containers shall not be subject to the marking requirements of this section. Usual containers in use as such at the time of importation shall in no case be required to be marked to show the country of their own origin. (emphasis added)

This section generally requires that when an article is excepted from marking for any of the reasons listed in 19 U.S.C. 1304(a)(3), including, because the article is on the "J-list," its container should be marked to indicate the country of origin of the article. Since ingots are excepted from country of origin marking because they are on the "J-list," their containers ordinarily must be marked to indicate the country of origin of the ingots. Although the importer correctly states that steel bands are also included on the "J-list," we disagree with the conclusion that the steel bands are not required to be marked with the country of origin of the ingots. While the emphasized language provides that the same exceptions from marking that apply to articles under subsection (a)(3) apply to their containers which ordinarily are required to be marked under 19 U.S.C. 1304(b), we conclude that because of the peculiar nature of the 19 U.S.C. 1304(a)(3)(J) exception, this exception from marking applies only to imported articles and/or their containers which ordinarily have to be marked to indicate their own country of origin.

Pursuant to 19 U.S.C. 1304(a)(3)(J) excepted articles include those which are "of a class or kind with respect to which the Secretary of the Treasury has given notice by publication in the weekly Treasury Decisions within two years after July 1, 1937, that articles of such class or kind were imported in substantial quantities during the five-year period immediately preceding January 1, 1937, and were not required during such period to be marked to indicate their origin ...(emphasis added)."

19 CFR 134.33 specifies that articles of a class or kind listed below are excepted from the requirements of country of origin marking in accordance with the provisions of 19 U.S.C. 1304(a)(3)(J). (emphasis added) On the basis of the language set forth in 19 U.S.C. 1304(a)(3)(J), we conclude that inclusion on the J-list means only that an article does not have to be marked to indicate its own country of origin. Inclusion on the J-list does not except an article from being marked to indicate the country of origin of another article under the provisions of 19 U.S.C. 1304 and 19 CFR Part 134.

In this case, the marking notice was issued because the bands were not marked to indicate the country of origin of the ingots which they held. We conclude that the J-list exception applicable to steel bands does not apply in such circumstances. As a container for imported ingots, pursuant to 19 U.S.C. 1304(b) and 19 CFR 134.33, they were required to be marked with the country of origin of the ingots.

HOLDING:

Steel bands holding tin-lead ingots are considered to be containers for purposes of 19 CFR 134.33 and are therefore required to be marked to indicate the country of origin of the ingots. Although steel bands are found among the excepted items listed in 19 CFR 134.33 which would not be required to be marked to indicate their own country of origin, such exception does not apply when the steel bands are required to be marked to indicate the country of origin of their contents. The steel bands must be marked to indicate the country of origin of the tin-lead ingots. A copy of this ruling should be provided to the importer's attorney.
Sincerely,

John Durant, Director
Commercial Rulings Division

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