HQ 0734781 - Country of origin marking of aluminum shells imported to be assembled and filled; 19 CFR 134.24(c); 19 CFR 134.36(b); "Made in U.S.A." marking; HQ 734240 - United States International Trade Commision Rulings

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HQ 734781

December 24, 1992

MAR-2-05 CO:R:C:V 734781 AT

CATEGORY: MARKING

Ralph H. Sheppard, Esq.
Adduci, Mastriani, Meeks and Schill
330 Madison Avenue
New York, New York 10017

RE: Country of origin marking of aluminum shells imported to be assembled and filled; 19 CFR 134.24(c); 19 CFR 134.36(b); "Made in U.S.A." marking; HQ 734240

Dear Mr. Sheppard:

This is in response to your letter of August 18, 1992, on behalf of National Corporation (National), concerning the country of origin marking requirements for aluminum shells which are imported empty to be used in the manufacturing of marking devices. A sample finished marker and empty aluminum shell, cost breakdowns, as well as the complete components used in the production of the marker were submitted for examination.

FACTS:

You state that National intends to import empty aluminum shells from Venezuela. After importation, National will assemble these aluminum shells with other domestic components (dispensing tip and pressurization device) into finished markers. Once assembled, the markers are filled with a polyurethane textile marking paint of domestic origin. After filling and packaging the products are sold to distributors by National. It is represented that National does not sell empty aluminum shells.

The outside carton in which the aluminum shells are imported is marked with the country of origin. As imported, the shells are printed with the product's description, directions for use, and the weight of the contents, the customer's logo, name, and address, and other product information, including the words, "Made in U.S.A.", which refer to the contents of the aluminum shells and not to the shells themselves. For purposes of this ruling the accuracy of the representation "Made in U.S.A." as to the contents of the marker is assumed. A ruling is requested that the imported aluminum shells be excepted from marking as to their foreign origin.

ISSUE:

1) Is National the ultimate purchaser of disposable containers which are imported to be filled within the meaning of 19 CFR 134.24(c), such that the empty aluminum shells may be excepted from individual marking?

2) Does the presence of the words "Made in U.S.A." on the empty imported aluminum shells require, as provided by 19 CFR 134.36(b), that the empty shells be individually marked as articles of foreign origin.

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 its 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 the exceptions of 19 U.S.C. 1304. Subpart C of Part 134 (19 CFR 134.21 et seq), sets forth the rules for the marking of containers and holders. We are satisfied that the imported aluminum shells are of the type defined as disposable containers ("[o]rdinarily discarded after the contents have been consumed") in section 134.24(a) of Subpart C, Part 134 which, when imported to be filled, may be excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D). Applying 19 CFR 134.24(c), National Corporation, which conducts the filling of the aluminum shells in the U.S., is the ultimate purchaser of the shells.

The final issue concerns the appearance on the imported shells of U.S. addresses and the words, "Made in U.S.A.". In some cases, pursuant to 19 CFR 134.36(b), the appearance of such words would preclude an article's eligibility for exception from marking. Section 134.36(b), provides that an exception from marking shall not apply to an article or retail container bearing any words, letters, names, or symbols described in 19 CFR 134.46 or 134.47 which imply that an article was made or produced in a country other than the actual country of origin. In this case, there is no implication that the aluminum shell is of U.S. origin; the reference plainly is to its future U.S. contents. Stated another way, such marking would in no way mislead National Corporation, the ultimate purchaser of the aluminum shells, which has ample knowledge of the reasons why such marking is present. Equally, assuming that the U.S. addresses and the statement "Made in U.S.A.", are accurate with respect to the production of the contents of the finished markers, the purchasers of those products would not be misled as to their origin. Under these circumstances, 19 CFR 134.36(b) does not apply to preclude the imported aluminum shells from being excepted from individual country of origin marking pursuant to 19 CFR 134.24(c)(1). See HQ 734240 (December 24, 1991) (imported collapsible tubes and aerosol containers imported to be filled solely with domestic contents in the U.S. may be imported printed with U.S. addresses and the marking "Made in U.S.A.", and 19 CFR 134.36(b) does not apply). Provided that the outside container in which the aluminum shells are imported are marked with the country of origin when they reach the ultimate purchaser, National Corporation, the country of origin marking requirements have been satisfied.

With respect to the marking "Made in U.S.A." printed on the aluminum shell, we advise you to contact the Federal Trade Commission, Division of Enforcement, 6th & Pennsylvania Avenue, NW, Washington D.C. 20508 before National undertakes to mark its finished product in that fashion, since use of the phrase "Made in U.S.A." is under the agency's jurisdiction.

HOLDING:

The imported aluminum shells are disposable containers within the meaning of Subpart C, Part 134, Customs Regulations. As such, when imported to be filled the importer, National Corporation, is their ultimate purchaser, and they may be excepted from individual country of origin marking pursuant to 19 CFR 134.24(c)(1). In this case the presence of U.S. addresses and the words "Made in U.S.A." are not improper implications within the meaning of 19 CFR 134.36(b).

Sincerely,

John Durant, Director
Commercial Rulings Division

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