MAR-2-05 CO:R:C:V 732450 KG
Thomas W. Facey
C.J. Tower Inc.
West Service Road
Champlain, New York 12919
RE: Country of origin marking of aluminum marker pen shell
Dear Mr. Facey:
This is in response to your letter of June 1, 1989, on
behalf of Advanced Monobloc, Inc., your file no. 112-1628513-7,
requesting a country of origin ruling for imported aluminum
marker pen shells. Samples were submitted for examination.
FACTS:
The aluminum marker pen shells are manufactured in Canada by
an impact extrusion method. A disc or slug of aluminum is impact
extruded into the shape of an aluminum barrel. This barrel is
then printed with the customer's design, which sometimes includes
the customer's name, U.S. address and the words "Made in USA",
and an ink reservoir is inserted. The ink reservoirs are
imported into Canada from the U.S. The last step in Canada
involves crimping the open end of the aluminum barrel in order to
prevent the ink reservoir from falling out of the barrel. The
marker pen shells are then bulk boxed in large corrugated cartons
and shipped to the U.S. marker pen manufacturer. These boxes are
marked "Made in Canada".
The U.S. manufacturer runs control tests on the marker pen
shells and then injects ink into them. The ink is trapped and
held by the ink reservoir. Then a felt tip (referred to as a
nib) is inserted through the open end of the marker shell and
into contact with the ink reservoir. A cap is friction fitted
over the felt tip. The product is then cleaned and inspected.
The marker pens are packaged either in boxes containing one dozen
markers or individually blister packaged on a display card.
ISSUE:
Whether the imported aluminum marker pen shells are
substantially transformed in the U.S. so as to be excepted from
individual country of origin marking requirements.
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. The United States Court
of International Trade stated in Koru North America v. United
States, 701 F.Supp. 229, 12 CIT (CIT 1988), "In ascertaining
what constitutes the country of origin under the marking statute,
a court must look at the sense in which the term is used in the
statute, giving reference to the purpose of the particular
legislation involved. The purpose of the marking statute is
outlined in United States v. Friedlaender & Co., 27 CCPA 297,
302, C.A.D. 104 (1940), where the court stated that: 'Congress
intended that the ultimate purchaser should be able to know by an
inspection of the marking on 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."
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.1(d), Customs Regulations (19 CFR
134.1(d)), states that the ultimate purchaser is generally the
last person in the United States who will receive the article in
the form in which it was imported. It is not feasible to state
who will be the ultimate purchaser in every circumstance,
however, several examples are provided in 19 CFR 134.1(d).
Section 134.35, Customs Regulations (19 CFR 134.35), provides
that "An article used in the United States in manufacture which
results in an article having a name, character or use differing
from that of the imported article, will be within the principle
of the decision in the case of United States v. Gibson-Thomsen
Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98). Under this principle,
the manufacturer or processor in the United States who converts
or combines the imported article into the different article will
be considered the "ultimate purchaser" of the imported article
within the contemplation of section 304(a), Tariff Act of 1930,
as amended (19 U.S.C. 1304(a)), and the article shall be excepted
from marking. The outermost containers of the imported articles
shall be marked in accord with this part."
The conclusion as to whether or not a particular article is
substantially transformed is determined on a case-by-case basis.
In this case, the marker pen shell is processed into a marker pen
in the U.S. The marker pen shell does undergo a name change and
become a marker pen. However, a change in name is the least
important criteria to be examined. The marker pen shell does not
undergo a change in use. As exported, it can only be finished as
a marker pen; there is no other potential use for a marker pen
shell. Further, although the marker pen shell does not contain
ink and is completely useless as a marker pen, the size, shape
and weight of the marker pen are determined by the marker pen
shell. These important characteristics do not change once the
processing in the U.S. takes place. Moreover, only a single size
felt tip will fit the marker pen shell. This characteristic also
does not change. For all these reasons, the U.S. processing does
not change the marker pen shell into a new article with a new or
different use. While the marker pen shell is made into a marker
pen in the U.S., the processing is relatively simple. The marker
pen shell is not substantially transformed in the U.S. The U.S.
marker pen manufacturer does not convert the marker pen shell
into a new and different article and therefore, is not the
ultimate purchaser of the marker pen shells. Accordingly, the
marker pen shells are not excepted from individually marking with
the country of origin under 19 CFR 134.35.
The two rulings cited as precedent, both under file HQ RM
363.2 K (May 15, 1979), involve empty containers to be filled in
the U.S. which only serve the function of containing the product
which the retail purchaser is buying, i.e., an empty toothpaste
tube and an empty aerosol can. This case is distinguishable
because the marker pen shell is a part of the product that the
retail purchaser is buying; not just a container. The two
rulings might be more on point, for instance, if this ruling
involved a empty vial for ink to be used with a ink pen. Another
ruling, RM 363.2 K (March 21, 1972), deals with marker pens but
the ruling concludes that one marker pen shell is substantially
transformed while the other is not without adequately describing
the differences between the two pens. Therefore, the ruling is
not helpful in resolving this issue.
In your letter you mentioned that some of the marker pens
are marked "Made in U.S.A.". The Federal Trade Commission has
jurisdiction over what can be marked with the phrase "Made in
U.S.A." and should be consulted to determine the appropriateness
of that marking in regard to this product.
HOLDING:
The imported marker pen shells are not substantially
transformed by the processing in the U.S. Therefore, the marker
pen shells are not excepted from individual country of origin
marking pursuant to 19 CFR 134.35 and must be individually marked
in accordance with 19 U.S.C. 1304 and 19 CFR Part 134.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch
cc: District Director
Champlain, New York
Attn: Peter Forttrell