CLA-2 OT:RR:CTF:TCM H215535 HvB
Paul C. Rosenthal, Esq.
Kelly Drye & Warren LLP
Washington Harbour, Suite 300
3050 K Street, NW
Washington, D.C. 20007-5108
RE: 19 U.S.C. 1516; Country of Origin Marking for Cast Iron and Aluminum Lampposts and Lamppost Bases
Dear Mr. Rosenthal:
This is in response to your letter of April 9, 2012, on behalf of your client, Spring City Electrical Manufacturing Company, Inc. (“Spring City”) concerning the country of origin marking requirements for lampposts and lamppost bases. Spring City is a domestic manufacturer of ornate cast iron and cast aluminum lampposts and lamppost bases and is located in Spring City, Pennsylvania.
Your letter contains two requests: Although you filed your letter as a petition by a domestic interested party pursuant to 19 U.S.C. 1516 and Part 175 of the CBP Regulations (19 C.F.R. Part 175), you request a determination as to the country of origin marking requirements applicable to lampposts and lamppost bases and you assert that the subject lampposts and lamppost bases should be marked in accordance with 19 CFR § 134.41. Secondly, you request that we revoke New York Ruling Letter (“NY”) J88217, dated September 9, 2003, issued to General Foundries Inc., concerning the marking requirements for manhole covers and construction castings. Under 19 CBP 177.1(c), Spring City has a demonstrable interest as a domestic manufacture of the articles in question. Accordingly, pursuant to Part 177 of the CBP Regulations (19 C.F.R. 177), we consider your letter as a request for a ruling.
FACTS:
In NY J88217, U.S. Customs and Border Protection (“CBP”) addressed the country of origin marking requirements for cast metal manhole rings, covers, frames, grates, and valve boxes. As we were presented with incomplete facts, we limited our decision to whether the subject articles were covered by 19 U.S.C. § 1304. §1304(e) provides:
No exception may be made under subsection (a)(3) with respect to manhole rings or frames, covers, and assemblies thereof each of which shall be marked on the top surface with the English name of the country of origin by means of die stamping, cast-in-mold lettering, etching, engraving, or an equally permanent method of marking.
Thus, NY J88217 held that the subject castings not listed in the statute, i.e., the grates and valve boxes, were not subject to the special marking requirements of § 1304(e). In addition, you take issue with CBP’s position on the requirements for marking of articles purchased by a municipality, as discussed in NY J88217. In NY J88217, we stated:
In general, the marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) 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. The term "ultimate purchaser" is defined in section 134.1(d), Customs Regulations (19 C.F.R. §134.1(d)), as generally the last person in the U.S. who will receive the article in the form in which it was imported. If the other castings are purchased by and for the use of a municipality or other local government agency, such municipality or agency would be the last person in the U.S. to receive them in the form in which they were imported and the ultimate purchaser of these items for the purposes of 19 U.S.C. 1304.
You also seek a country of origin marking determination on the following kinds of lampposts:
Cast iron lampposts, which are comprised of a single piece of powder-coated cast iron,
Welded cast aluminum lampposts, which resemble cast iron but, consist of two aluminum castings welded together,
Cast iron base wrapped around a steel shaft,
Cast aluminum base and a steel shaft, and
Cast aluminum extrusion welded to a cast aluminum base.
In your letter you identify companies importing these articles and provide information about the subject lampposts and bases in Attachment A of your submission. Many of the pictured items feature ornate designs. Based upon the information currently before us, this decision assumes that the articles at issue are classifiable as lampposts or lamppost bases in heading 9405, HTSUS, which provides for “Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included.”
ISSUES:
What are the country of origin marking requirements for cast metal lampposts and lamppost bases purchased by municipalities?
What are the marking requirements for cast metal lamppost and lamppost bases bearing the name of U.S. localities?
LAW AND ANALYSIS:
You assert that CBP’s current interpretation of the ultimate purchaser regarding municipalities is inconsistent with Congressional intent. You cite to NY J88217 as an example of this approach and argue that this ruling should be revoked. In support of Spring City’s argument that public procurement laws are frustrated and that the tax-paying public is the ultimate purchaser, you refer to a Senate Finance Committee Report, which accompanied the Trade and Tariff Act of 1984 (Pub. L. 98-573, 98 Stat. 296 (1984). In discussing Section 206 which proposed new country of origin marking requirements for pipe rings, pipe fittings, metal pressure containers, manhole covers and assemblies, Congress stated: “Under the circumstances in which manhole covers and assemblies are used… it would be more appropriate to require the labeling of these matters where the public—which is the ultimate purchaser and user of the item—would be informed of its origin in accordance with the general intention of the U.S. marking law.” Sen. Rpt. No. 98-308, 98th Cong., 1st Sess. 1983-1984 (Nov. 10, 1983). As a result, Congress enacted section 207, which amended 19 U.S.C. § 1304(e). Hence, you believe that imported cast iron and cast aluminum lampposts and lamppost bases should be conspicuously and indelibly marked with the country of origin in a manner consistent with §1304(e).
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. 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; C.A.D. 104 (1940).
Part 134, CBP Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.11, CBP Regulations (19 CFR §134.11), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. See also 19 C.F.R. § 134.41. The "ultimate purchaser" is defined generally as the last person in the U.S. who will receive the article in the form in which it was imported.
Accordingly, the next issue presented in this case is the identity of the ultimate purchaser with respect to lampposts and lamppost bases purchased by municipalities. As explained below, the ultimate purchaser of the lampposts and lampposts bases is the municipality.
CBP has previously ruled that articles may be excepted from the country of origin marking requirements of 19 U.S.C. § 1304, under one of the country of origin marking exceptions. The general exceptions are set forth in 19 USC § 1304(a)(3) and 19 CFR 134.32. For example, under 19 U.S.C. § 1304(a)(3)(D) and 19 CFR 134.32(d), articles are excepted if marking of the containers will reasonably indicate the origin of the articles. In addition, 19 USC § 1304(a)(3)(F) and 19 CFR 134.32(f) provide that articles that are imported for use by the importer and are not intended for sale in their imported or in any other forms are excepted from the country of origin marking requirements of 19 U.S.C. § 1304. Under 19 U.S.C. § 1304(a)(3)(H) and 19 CFR 132.32(h), an article may be excepted if the ultimate purchaser must necessarily know the country of origin by reason of the circumstances of the importation or by reason of the character of the article, even though it is not marked to indicate its country of origin.
In your request, you assert that the subject lampposts and lamppost bases should be marked in accordance with 19 CFR § 134.41, which requires that the marking of the country or origin be legible, indelible, and permanent. Lampposts and lamppost bases are not listed nor are of the class or kind of articles described by 19 CFR § 134.43, which prescribes definite marking methods for certain goods. 19 CFR § 134.41 states, in pertinent part (emphasis added), “For example, it is suggested that the country of origin on metal articles be die sunk, molded or etched[.]” Thus, CBP regulations do not require that metal lampposts and lampposts bases be specifically marked in such a manner. However, the marking must be sufficiently permanent and visible that in any reasonably foreseeable circumstances, the marking shall remain on the lampposts and lamppost bases until it reaches the ultimate purchaser such that the ultimate purchaser can easily locate and read the marking without strain.
Since we are presented with the question of the marking requirements for lampposts and lamppost bases bearing the name of U.S. localities, we must consider whether the special marking requirements of 19 C.F.R. § 134.46 are applicable. This regulation may be triggered when an article or its container is marked with the name of a U.S. or foreign locality other than the article’s country of origin and CBP determines that the non-origin reference may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. See Headquarters Ruling Letter (“HQ”) 561712, dated September 5, 2000. In this case, the lampposts and lamppost bases are excepted from the marking requirements, pursuant to 19 CFR § 134.32(h), only if the ultimate purchaser, the municipality, must necessarily know the country of origin by reason of the circumstances of importation. When the ultimate purchaser, in this case, the municipality, does not necessarily know that the lampposts and lamppost bases are not made in the country associated with the locality reference (the U.S. in this case), due to the specific circumstances of the purchase and importation, the lampposts and lamppost bases must be marked in accordance with 19 C.F.R. § 134.46.
CBP has not ruled specifically on the proper country of origin marking requirements for cast iron and cast aluminum lampposts and lamppost bases. However, CBP’s present position regarding country of origin marking for imported metal castings sold to municipalities is set forth in HQ 731937, C.S.D. 90-61 (February 27, 1990), regarding the country of origin marking requirements for imported sewer castings and gate valves. Two issues were presented: (1) whether the subject merchandise was within the scope of 19 U.S.C. § 1304(e) and, (2) whether the letters “O.M.” (an abbreviation for Otay Mesa, a known geographical area in San Diego) triggered the requirements of 19 C.F.R. § 134.46 concerning articles marked with U.S. references. CBP wrote that if the local government municipality purchased the items in question, then the municipality was the “ultimate purchaser” because citizens are not involved in the purchasing decision. “As long as the ultimate purchaser is informed of the country of origin in a permanent and conspicuous manner, 19 CFR § 134.41 is satisfied.” CBP determined that the legislative history to § 1304(e) does not mention sewer caps or gate valves, and that section 207 specifically enumerated certain items rather than a general category of items. Thus, the articles were not subject to the special marking requirements of § 1304(e). With regards to the second issue, CBP found that the letters “O.M.” did not trigger the special marking requirements of 19 C.F.R § 134.46, because these letters “referred to a local sewer authority, Otay Mesa, and did not reference a U.S locality or the commonly recognizable initials of locality, e.g., “NYC” or “N.Y. City.”
In HQ 734785, dated March 17, 1993, CBP addressed the issue of whether the words “Beaumont, Texas” on cast metal upper barrels triggered the requirements of 19 C.F.R §§ 134.46 and 134.36(b). The subject upper barrels were from Brazil and were used in the production process of fire hydrants. The evidence showed that the barrels were substantially transformed in the manufacture of fire hydrants, and that therefore, the importer manufacturer was the ultimate purchaser under 19 C.F.R. § 134(d)(1). CBP then addressed the issue of whether the importer manufacturer would be misled by the U.S. reference to “Beaumont, Texas”. As the U.S. importer certified that it was aware of the country of origin of the upper barrels, the shipping containers were marked with the country of origin and reached the U.S. importer in such condition, and the U.S. importer was the one requesting “Beaumont, Texas” to be cast on the side, it was held that the U.S. importer, the ultimate purchaser, could not be misled by the presence of the U.S. locality on the imported upper barrel. CBP also noted that “[b]ecause the upper barrels [were] substantially transformed in the United States, the concern that the general public might be misinformed by the reference to “Beaumont, Texas” on the finished fire hydrant is misplaced and beyond the scope of 19 U.S.C. § 1304. HQ 731937 and HQ 734785 are consistent with our more recent precedent. (See, e.g., HQ H009501, dated September 19, 2007, finding that the words and initials for “San Francisco, CA” near the brand name Levi Strauss on jeans triggered 19 C.F.R. § 134.46.)
In HQ 733753, dated June 6, 1991, CBP addressed the country of origin marking requirements for brass couplings for residential water meters, non-malleable cast iron flange couplings for larger water meters, rubber gaskets, and water meter cables to connect the meters with external registers sold in cartons to municipalities. Citing to HQ 731937 (discussed above) and HQ 730945, C.S.D. 86-26 (August 11, 1988), CBP determined that the municipality was the ultimate purchaser because the municipality installed the water meter and accessories in the commercial or residential building for the purpose of determining proper billing of its customers. In addition, CBP noted that once installed, the water meter and accessories remain the property of the municipality. Therefore, the products were excepted from marking under 19 USC § 1304(a)(3)(D) and 19 CFR § 134.32(d). CBP concluded the municipality was the ultimate purchaser and therefore, that the water meter accessories were excepted from the country of origin marking requirements. Based on the foregoing, provided there is no substantial transformation of the lampposts after importation by an intermediary party, the municipality is the ultimate purchaser.
In NY J88217 (September 9, 2003), CBP ruled that imported metal castings in the form of grates and valve boxes were not subject to the special marking requirements of 19 U.S.C. § 1304 and 19 CFR Part 134, in accordance with HQ 731937 (February 27, 1990), because the merchandise was not described by the enumerated articles in 19 U.S.C. § 1304(e). With respect to your request that we revoke NY J88217, we note that as the ruling was not issued to your client, you lack standing to request revocation of the ruling. See 19 CFR § 177.12(b). Further, for the reasons stated in the analysis above, we decline to revoke NY J88217.
HOLDING:
Lampposts and lamppost bases must be marked with the country of origin unless excepted under 19 USC § 1304(a)(3). The ultimate purchaser of the lampposts and lamppost bases is the municipality.
In accordance with 19 CFR § 134.41, lampposts and lamppost bases need not to be specifically marked in a manner suggested for metal castings under 19 CFR § 134.41. The marking must be sufficiently permanent and visible that in any reasonably foreseeable circumstances, the marking shall remain on the lampposts and lamppost bases until it reaches the ultimate purchaser such that the ultimate purchaser can easily locate and read the marking without strain.
With regard to the lampposts and lamppost bases featuring U.S. locality references, when the municipality is the ultimate purchaser, unless the municipality must necessarily know the country of origin of the lampposts and lampposts bases, by reasons of the circumstances of importation, the subject lampposts and lamppost bases must be specially marked, in accordance with 19 CFR § 134.46.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transactions.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification & Marking Branch