Country of origin marking of Tube Parts from Canada; Special Marking Requirements for Pipes and Tubes; 19 U.S.C. 1304(c)(1)(2); T.D. 86-15; T.D. 92-70

HQ 561368 June 22, 1999 MAR-05 RR:CR:SM 561368 RSD CATEGORY: MARKING Darlene DiBenardo, Manager Livingston Consulting Group U.S. Regulatory Affairs 208 West Service Road Champlain, New York 12919 RE: Country of origin marking of Tube Parts from Canada; Special Marking Requirements for Pipes and Tubes; 19 U.S.C. 1304(c)(1)(2); T.D. 86-15; T.D. 92-70 Dear Ms. DiBenardo: This is in response to your letter dated April 5, 1999, on behalf of Copperweld Canada Standard Tube Division (Copperweld) regarding the country of origin marking requirements of certain tube parts. No samples or pictures of the articles were submitted. FACTS: Copperweld will be importing steel tubes from Canada into the U.S. for processing after which they will be exported back to Canada. It is stated that the tubes are classifiable under Heading 7306, Harmonized Tariff Schedule of United States (HTSUS). The tubes will be imported in three lengths: 2.020, 2.250, and 2.450 inches. The outside diameter of each tube is 4.381 inches and the inside diameter is 4.172 inches. After importation into the U.S., the steel tubes will be shipped to Batesville Tool & Die in the United States to perform certain operations. The tubes will be inspected, and put through a notch machine for various configurations, a weld machine to weld tabs to the part, and put through a pierce die and press to pierce holes in the tabs. After the four operations are completed, the tubes can be used as parts for electric motors for automobiles, and will be shipped to Siemens Canada Limited of London Ontario. The parts will not remain in the United States. It is also stated that the imported tubes will qualify for preferential tariff treatment under the North America Free Trade Agreement (NAFTA). ISSUE: What are the country of origin marking requirements for the imported tubes?  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 are 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 (1940). Special country of origin marking requirements apply to certain pipe and fittings. Specifically, section 207 of the Trade and Tariff Act of 1984, Pub. L. 98573, 98 Stat. 2976 (1984), amended 19 U.S.C. §1304 to require “pipes ...[and] pipe fittings” of iron or steel to be marked to indicate the proper country of origin by means of die stamping, castinmold lettering, etching, or engraving. 19 U.S.C. §1304(c). This provision further provides that no exception from these marking requirements may be made under 19 U.S.C. §1304(a)(3) for these products. Customs has determined that the requirements of 19 U.S.C. §1304(c) are applicable to those articles which are considered pipes, pipe fittings, or tube fittings of iron and steel for classification purposes. See T.D. 8615. After the enactment of section 207, it was brought to the attention of Customs that certain pipe and pipe fittings of iron or steel could not be marked by any of these prescribed methods without rendering such article unfit for the purpose for which it was intended. In T.D. 8615, certain categories were set forth which may be marked by alternative methods. For certain categories of articles, paint stenciling was the requisite method. For other categories, paint stenciling or tagging of the bundles or the containers was permitted. These categories, which include thinwalled pipes and fittings, smalldiameter pipes and fittings, other fittings, line pipe, coated pipes, and spun iron pipe, are described in detail in T.D. 8615. In addition, ornamental pipes, tubes, and fittings of all types with a highly polished surface, were permitted to be marked by means of a durable and securely affixed tag or sticker, or by marking the protective wrapper. In 1986, Congress enacted Pub. L. 99514 which amended 19 U.S.C. §1304(c) to authorize such alternative methods of marking if, because of the nature of an article, it is technically or commercially infeasible to mark by one of the four originally prescribed methods. Section 1304(c)(2) provided that in such case, “the article may be marked by an equally permanent method of marking such as paint stenciling or in the case of small diameter pipe tube and fittings, by tagging the containers or bundles.” In order to carry out Congressional intent, on July 22, 1992, Customs published T.D. 9270 in the Federal Register, which amended T.D. 8615 by permitting the country of origin marking of pipes, tubes, and fittings by tagging of bundles or containers only with respect to small diameter pipes, tubes, and fittings. T.D. 9270 specifically stated that pipes, tubes and fittings which could not be marked by a prescribed method must be marked by “paint stenciling or an equally permanent method.” The notice indicated that Customs does not consider tagging the containers or bundles an equally permanent marking method as paint stenciling. Therefore, marking pipes, tubes, and fittings by tagging the bundles or containers is acceptable only for small diameter products. In T.D. 8615, Customs determined that small diameter products included fittings that have a nominal diameter of onefourth inch or less and pipes with an inner diameter of 1.9 inches or less. Customs recognized in T.D. 9270 that there might be some cases where paint stenciling or an equally permanent method of marking could damage the product and render it unfit for the purpose it was intended. Customs indicated that in such instances it would consider alternative methods of marking on a casebycase basis. On December 8, 1993, as part of the North American Free Trade Agreement (“NAFTA”) Implementation Act, Congress again amended the country of origin marking provisions on pipes, tubes and pipe fittings (Pub. L. No. 103182) by adding a fifth acceptable statutory method of markingcontinuous paint stenciling. In addition, 19 U.S.C. §1304(c)(2) was amended by eliminating the reference in the statute which indicated that paint stenciling was an example of an equally permanent method of marking that could be used if it was technically or commercially infeasible to mark by one of the other statutory methods. By enacting this amendment to 19 U.S.C. §1304(c), Congress reaffirmed its decision that pipes must be permanently marked by only certain methods. Only in cases where it is technically or commercially infeasible to mark by one of the five specified methods can an alternative be considered and that alternative must be equally as permanent. Furthermore, tagging bundles or containers will be acceptable only in the case of small diameter pipe, tube, and fittings. You indicate that based on 19 U.S.C. §1304(c)(2), the tubes should be exempt from the special marking requirements for pipes and tubes of 19 U.S.C. §1304(c). However, no evidence has been presented to establish that it is technically or commercially infeasible to mark the tubes by one of the statutory methods. The length of the tubes is not sufficient grounds to establish that it is technically or commercially infeasible to mark the tubes by one of statutory methods prescribed in 19 U.S.C. §1304(c). In addition, because the imported tubes have an inside diameter of 4.172 inches, they do not fall within the definition of small diameter pipes set forth in T.D. 86-15. Because Customs does not have the authority to grant an exception to the special marking requirements of 19 U.S.C. §1304(c)(1) for the imported tubes, (excepted as provided in (c)(2)) they must be marked to indicate their country of origin by one of five statutory methods prescribed in 19 U.S.C. §1304(c). Furthermore, even if it could be established that it is 4 technically or commercially infeasible to mark the imported tubes by one of the 5 methods prescribed in 19 U.S.C. 1304(c), marking the outermost containers in which the tubes are shipped to the U.S. would not qualify as “an equally permanent method of marking.” HOLDING: In accordance with the requirements of section 304(c) of the Tariff Act of 1930 as amended (19 U.S.C. §1304(c)), the subject pipe fittings are required to be marked with the country of origin by die-stamping, cast-in-mold lettering, etching, engraving, or paint stenciling. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, John Durant, Director Commercial Rulings Division