Country of origin marking for steel ornamental tubing with ahighly polished surface; pipes; sticker or tags; 19 U.S.C.1304(c); T.D. 86-15; T.D. 92-70

HQ 734806 April 22, 1993 MAR-2-05 CO:R:C:V 734806 RSD CATEGORY: MARKING Mr. Douglas Hahn Vice President Sales & Marketing Sonco Steel Tube 14 Holtby Avenue Brampton, Ontario Canada L6X 2M3 RE: Country of origin marking for steel ornamental tubing with a highly polished surface; pipes; sticker or tags; 19 U.S.C. 1304(c); T.D. 86-15; T.D. 92-70 Dear Mr. Hahn: This is in response to your letter dated September 2, 1992, regarding the country of origin marking requirements for mechanical tubing with a highly polished surface. You have enclosed letters from your customers in the United States. FACTS: Sonco, a Canadian company, imports steel mechanical tubing made in Canada. The product is electric resistance-welded mechanical tubing, ASTM A513, .080 inch or less. It is typically used for ornamental or highly visible applications. Maximum size of the tubes is 2 x 2 inches cross section. Some of main uses of the tubing are in chrome plated or painted furniture; plated or painted store racks and displays; exercise equipment frames; BBQ legs; and plated automotive tailpipes. The tubing has a highly polished surface and Sonco claims that its customers will reject products for traces of oil, dirt, or light scratches. Prior to July 22, 1992, the tubing was marked with its country of origin by means of tagging of the bundles or containers. It is contended that a permanent paint, ink, or stain marking system will require major and costly processing to clean the marking because the residues often show through the plated surface, or bleed through the painted surface. In some cases, the residue will cause poor paint or plating adhesion to the tube surface. The accompanying correspondence from Sonco's customers indicated that they would find marking the country of origin by paint stenciling to be unacceptable and would not buy the product. ISSUE: Can an alternative method of marking other than paint stenciling be used to mark highly polished ornamental tube subject to the requirements of 19 U.S.C. 1304(c)? 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 (1940). C.A.D. 104 (1940). Section 207 of the Trade and Tariff Act of 1984, (Pub. L. 98-573), amended 19 U.S.C. 1304 to require, without exception, that all pipe, tube, and pipe fittings of iron or steel be marked to indicate the proper country of origin by means of die stamping, cast-in-mold lettering, etching or engraving. 19 U.S.C. 1304(c). However, after the enactment of Section 207, it was brought to the attention of Customs that certain pipe and pipe fittings of iron or steel cannot be marked by any of the methods prescribed by the section without rendering such articles unfit for the purpose for which they were intended. Customs solicited comments on this subject, and issued T.D. 86-15 published in the Federal Register on February 5, 1986, 51 FR 24, setting forth certain categories of articles which may be marked by alternative methods. For certain categories of articles, paint stencilling was the requisite method. For other categories, paint stencilling or tagging of the bundles or the containers was permitted. These categories included thin-walled pipes and fittings, small-diameter pipes and fittings, other fittings, line pipe, coated pipes, and spun iron pipe. These categories of articles are described in detail in T.D. 86-15. In addition, for ornamental pipes, tube, and fittings of all types, having a highly polished surface, T.D. 86-15 permitted marking by means of a durable tag or sticker securely affixed or marking the protective wrapper. In 1986, Congress enacted Pub. L. 99-514 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 prescribed methods. 19 U.S.C. 1304(c)(2) provides 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, in the Federal Register, T.D. 92-70, which amended T.D. 86-15 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. 92-70 specifically stated that pipe, 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 stencilling. Therefore, marking pipe, tube, and fittings by tagging the bundles or containers is acceptable only for small diameter product. In T.D. 86-15, Customs determined that small diameter product included fittings that have a nominal diameter of one-fourth inch or less and pipe with an inner diameter of 1.9 inches or less. Customs recognized in T.D. 92-70 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 case by case basis. In this case, Sonco has presented evidence that the paint stenciling of the tube would seriously mar the product and make it unusable for the purpose for which it was intended and thus unsalable. Under these circumstances, Customs will permit an alternative method of marking. Alternative methods of marking for the types of product which Sonco is importing were provided for in T.D. 86-15. The prescribed alternative method for marking ornamental pipes, tubes and fittings of all types having highly polished surfaces indicated in T.D. 86-15 would be to have each piece separately marked with a durable tag or sticker securely affixed to the article, or separately wrapped in a protective wrapping which clearly indicates the country of origin. We find that putting a secure sticker or a tag on each tube would be the most permanent method of marking possible that would not cause damage to the product and would be the best approach for marking the tubing which Sonco is importing into the United States. In other words, each tube would have to be individually marked by a sticker, tag, or on its protective wrapper. However, in accordance with 19 U.S.C. 1304(c)(2) and T.D. 92-70, tagging only the bundles and not the individual tubes would not constitute permanent marking and would not be acceptable. HOLDING: The ornamental tubes that Sonco is importing do not have to be marked to indicate their country of origin by means of paint stenciling. Marking the individual tubes either by a sticker or a tag securely affixed or separately wrapped in a protective wrapping which clearly indicates the country of origin will satisfy the requirements of 19 U.S.C. 1304(c). Tagging only the bundles is not an acceptable method of marking the tubes. Sincerely, John Durant, Director Commercial Rulings Division