HQ 731555

July 18, 1988

MAR-2-05 CO:R:C:V 731555 LW

CATEGORY: Marking

Mr. Kirk R. Irwin

Vice President - Manufacturing and

Engineering

The J.E. Baker Company

P.O. Box 1189

York, PA 17405

RE: Country of origin marking requirements for refractory bricks

Dear Mr. Irwin:

This is in response to your letter of June 27, 1988,

requesting a ruling on country of origin marking requirements for

refractory bricks to be imported from Mexico by J.E. Baker

Company (the importer).

FACTS:

Based on your letter, we understand that the importer is

contemplating importing refractory bricks from Mexico. These

bricks are sold exclusively to industries for use in the lining

of kilns and steelmaking vessels. As you explained in a phone

conversation with a member of my staff on July 12, 1988, the

bricks are cubed, placed on pallets, covered by plastic shrink

wrap, and then secured by metal straps. In addition, a card

board wrapper with the name of the company, and other product

information will be placed underneath the metal banding. When

repackaging is necessary because the U.S. purchaser will purchase

less than a full pallet of bricks, the importer does the

repackaging. The new container will be a smaller pallet shrink

wrapped and banded. In all cases either the outer container (the

strapping or the shrink wrap), or the cardboard wrapper will be

marked \"Made in Mexico.\" If the importer repacks the bricks the

new container will also be marked \"Made in Mexico.\"

ISSUE:

May metal straps and plastic shrink wrap used to secure

bricks be considered a container for purposes of country of

origin marking regulations?

Is it acceptable to mark the bricks\' containers rather than

each individual brick with the country of origin?

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When the importer repacks bricks in smaller units, using

metal straps and shrink wrap, which will be sold to the ultimate

purchaser, is marking the repacked container sufficient to comply

with marking requirements?

LAW AND ANALYSIS:

With regard to the first issue, section 304 of the Tariff

Act of 1930, as amended (19 U.S.C.1304), requires that, unless

excepted, every article of foreign origin (or its container)

imported into the United States 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 the English name of the

country of origin of the article.

As you are aware, Customs has previously ruled that metal

strapping used to secure pavestones would be considered a

container for purposes of complying with the marking

requirements. (709337 JB; October 23, 1978; 708694 B; February

27, 1978). Customs has also determined that plastic shrink wrap

covering a pallet of bricks would be considered a container.

(700935; December 5, 1972). In view of these previous rulings,

it is our opinion that the metal straps and shrink wrap used to

secure pallets of bricks may be considered a container under the

marking law and regulations.

Once it has been determined that the metal straps and

plastic shrink wrap may be considered a container, we turn to the

second issue. As indicated, 19 U.S.C. 1304 requires that every

article of foreign origin (or its container) must be marked

conspicuously, legibly, indelibly and permanently so as to

indicate to the ultimate purchaser the English name of the

country of origin of the article.

Section 134.1(d)(1), Customs Regulations (19 CFR

134.1(d)(1)), states that if an imported article will be used in

manufacture, the manufacturer may be the \"ultimate purchaser\" if

he subjects the imported article to a process which results in a

substantial transformation of the article, even though the

process may not result in a new or different article. In this

case, because the bricks are used by manufacturers in the lining

of kilns and steelmaking vessels, the bricks are substantially

transformed, and the manufacturers become the ultimate

purchasers. If these manufacturers are the exclusive purchasers

of the bricks, then the bricks need to be marked in such a way

which will indicate to them the country of origin.

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Section 134.32(d), Customs Regulations (19 CFR 134.32(d)),

provides that articles for which the marking of the containers

will reasonably indicate the country of origin of the articles,

are excepted from the country of origin marking requirements of

19 U.S.C. 1304 and Part 134, Customs Regulations (19 CFR Part

134). Because the manufacturers are the ultimate purchasers of

the bricks, marking their containers will reasonably indicate the

articles\' country of origin. If the packages of brick will be

broken apart and sold individually, or other than on pallets

secured by metal straps and shrink wrap, then each brick must be

marked with the country of origin.

If the importer\'s U.S. address, or another reference to the

U.S. appears on the cardboard wrapper, or another part of the

container, section 134.46, Customs Regulations (19 CFR 134.46),

requires that the name of the country of origin preceded by \"Made

in,\" \"Product of,\" or other words of similar meaning shall

appear, legibly and permanently, in close proximity to the U.S.

address or reference and in at least a comparable size. The

purpose of this section is to prevent the possibility of

misleading or deceiving the ultimate purchaser.

In accordance with section 134.41(b), Customs Regulations

(19 CFR 134.41(b)), whether the country of origin is marked on

the cardboard wrapper, the metal strapping, or the plastic shrink

wrap, the degree of permanence of the marking on the containers

should be at least sufficient to insure that in any reasonably

foreseeable circumstance, the marking shall remain on the

container until it reaches the ultimate purchaser unless it is

deliberately removed. The marking must survive normal

distribution and store handling. The ultimate purchaser in the

U.S. must be able to find the marking easily and read it without

strain. In accordance with this requirement, if the country of

origin is to be marked on the cardboard wrapper it must be held

in place securely by the metal straps. If the country of origin

is to be marked on the shrink wrap, the marking may not be

obscured by the metal straps, or the cardboard wrapping.

Concerning the third issue, section 134.26, Customs

Regulations (19 CFR 134.26), which concerns imported articles

repacked or manipulated, requires that when an article is

intended to be repacked after its release from Customs custody,

or if the district director having custody of the article has

reason to believe that the article may be repacked after its

release, the importer must certify to the district director that

if the importer does the repacking, he shall not obscure or

conceal the country of origin marking appearing on the article,

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or else the new container shall be marked to indicate the country

of origin of the article in accordance with country of origin

marking regulations. The importer or his authorized agent must

sign a statement to this effect. Thus, if the repacked bricks

are sold exclusively to the ultimate purchaser, as indicated

above, marking the container satisfies country of origin marking

requirements.

HOLDING:

In view of the above considerations, the bricks\' containers

may be marked with the country of origin by marking the metal

straps, the shrink wrap, or the cardboard wrapper in a

conspicuous, legible, indelible, and permanent manner. If the

bricks are repackaged the importer must certify to the district

director having custody of the articles that he will mark them in

accordance with country of origin marking regulations.

Sincerely,

Marvin M. Amernick

Chief, Value, Special Programs

and Admissibility Branch

1cc: CO:R:C:V:LWEDDELL:LDC:7/15/88

Mr. Kirk R. Irwin

Vice President - Manufacturing and

Engineering

The J.E. Baker Company

P.O. Box 1189

York, PA 17405