HQ 0733880 - Internal Advice request 59/90, concerning country of origin marking of undercarriage replacement parts for construction equipment; Permanent, 19 CFR 134.41 - United States International Trade Commision Rulings

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HQ 733880

February 8, 1991

MAR-2-05 CO:R:V:C 733880 RSD

CATEGORY: MARKING

District Director of Customs
Second and Chestnut Streets
Philadelphia, Pennsylvania 19106

RE: Internal Advice request 59/90, concerning country of origin marking of undercarriage replacement parts for construction equipment; Permanent, 19 CFR 134.41

Dear Sir:

This is in response to the internal advice request, dated July 30, 1990, made by Lynn Baker of Katten, Munchin & Zavis, on behalf of Komatsu Dresser Company (Komatsu Dresser) concerning the country of origin marking of future shipments of imported undercarriage replacement parts for construction equipment made in Italy.

FACTS:

Komatsu Dresser imports undercarriage replacement parts for use in construction equipment, including bulldozers, wheel loaders, and crawler tractors. This construction equipment is made in Japan by Komatsu Ltd. However, the undercarriage replacement parts are manufactured under license in Italy by a company called Italtractor. On March 8, 1990, U.S. Customs in Philadelphia issued a marking notice to Komatsu Dresser regarding a shipment of 34 cases of spare undercarriage parts imported from Italy. These parts were marked "Made in Italy," by use of paper adhesive stickers. Customs found that this marking did not satisfy the country of origin marking requirements because it was not permanent enough to remain on the parts. However, Customs accepted the method of marking for that shipment, but stated that future shipments must be permanently marked.

Another shipment of undercarriage spare parts arrived in Philadelphia on July 31, 1990, marked with pressure sensitive labels. Customs inspected the shipment and found that after being exposed to the outdoor elements, the pressure sensitive labels were peeling off the undercarriage parts. Customs rejected the country of origin marking for not being sufficiently permanent and issued another marking notice. Komatsu Dresser agreed to remark the undercarriage parts by paint stencilling. Customs accepted this method of marking and released the shipment.

Komatsu Dresser now proposes to use an alternative type of pressure sensitive labels known as "anti-sabotage" labels, to mark the country of origin on future shipments of the undercarriage spare parts. It is claimed that these labels are used for applications where it is vital that the identification tags not be removed. The importer submitted samples of these "anti-sabotage" labels. In addition, the importer submitted photographs to illustrate how they intend to use the labels to mark the country of origin on the undercarriage spare parts. In order for Customs to be to distinguish the "anti-sabotage" labels from other the adhesive labels, Counsel for the importer has also represented that the "anti-sabotage" labels will bear the initials "ASL".

ISSUE:

Is the proposed method of country of origin marking by use of a type of pressure sensitive labels known as "anti-sabotage" labels sufficiently permanent?

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, C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. That section further provides that the degree of permanence should be at least sufficient to insure that in any reasonably foreseeable circumstance the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed.

As a general rule, marking requirements are best met by marking worked into the article at the time of manufacture. For example, its suggested that the country of origin on metal articles be die sunk, molded in or etched. See 19 CFR 134.41. However, the Customs Service normally permits any reasonable method of marking that will remain on the article during handling until it reaches the ultimate purchaser. This includes the use of paper sticker or pressure sensitive labels and string tags. See HQ 703500, March 10, 1990. If paper stickers or pressure sensitive labels are used, section 134.44, Customs Regulations (19 CFR 134.44), provides that they must be affixed in a conspicuous place and so securely that unless deliberately removed they will remain on the article while it is in storage or on display and until delivered to the ultimate purchaser.

Although, as you determined with regard to the previous shipments of Komatsu Dresser, certain stickers and labels will not adequately adhere to metal surfaces, we are of the opinion that the sample "anti-sabotage" labels submitted are sufficiently permanent that they would remain on the undercarriage spare parts until they reach the ultimate purchaser. We note that the "anti- sabotage" labels could not be removed from a sample metal backing by scratching or peeling them, without destroying the labels. However, we did not fully test the labels or expose them to the outdoor elements and we do not know how they will perform over time. If it is determined that these labels are not remaining on the articles or that they become unreadable before they reach the ultimate purchaser, a new method of country of origin marking must be used, such as requiring that the marking be die sunk, molded in or etched into the articles at the time of manufacture. We suggest that future shipments of these articles be monitored to ensure that these labels are remaining on the articles until they reach the ultimate purchasers and that the country of origin marking remains legible. We also note that the "anti-sabotage" labels will be identifiable because they will bear the initials

HOLDING:

The country of origin marking of undercarriage spare parts by means of pressure sensitive adhesive labels, known as "anti- sabotage" labels is sufficiently permanent to satisfy the requirements of 19 U.S.C. 1304, 19 CFR 134.41, and 19 CFR 134.44, provided such labels are conspicuously placed and remain on the articles until they reach the ultimate purchasers and that the country origin marking remains legible.

Sincerely,

John Durant, Director
Commercial Rulings Division

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