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HQ 557990

November 3, 1994

MAR-2-05 CO:R:C:S 557990 MLR


Rufus E. Jarman, Jr., Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Country of origin marking for large diameter automotive fittings; pipes; tube fittings; tagging bundles or containers; 19 U.S.C. 1304(c)

Dear Mr. Jarman:

This is in reference to your letters of July 13, 1993, and June 30, 1994, on behalf of HiSAN Inc., regarding the country of origin marking requirements for certain automotive fittings. At a meeting held at the Office of Regulations and Rulings, you presented new arguments and made new submissions on the marking requirements for these products. Headquarters Ruling Letter (HRL) 735252 dated July 7, 1994, was issued to you concerning the marking requirements for the small diameter fittings (those with a nominal diameter of a 1/4 inch or less). This ruling addresses the marking requirements for the fittings with a nominal diameter greater than 1/4 inch.


HiSAN Inc. imports automotive fittings that are used as components in the production of articles such as brake lines and fuel lines. These articles will be sold strictly as original automotive equipment to auto producers.

The fittings are produced from steel bar by cold heading with a forming punch or die which produces the Hex Head, Chamfer Forms, and an inner diameter through hole. The threads are formed on the body of the fitting by role forming. After the fittings are completely formed, they are plated with a zinc chromate alloy to provide a highly uniform and wear-resistant surface to meet the original equipment manufacturer's (OEM) specifications.

The manufacturing of the brake and fuel lines involves attaching the fittings to various shaped automotive metal tubes. The fittings themselves have OEM part numbers, as do the assemblies into which they are incorporated. The fittings are produced and dedicated specifically for use in automobiles and have no other uses. The specification standards for automotive tube fittings and automotive pipe fittings are submitted for our review.


Whether the automotive fittings with a nominal inner diameter greater than 1/4 inch are subject to the special country of origin marking requirements specified in 19 U.S.C. 1304(c).


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 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (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. 98-573), 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, cast-in-mold 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. 86-15.

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. 86-15, certain categories are set forth which may be marked by alternative methods. For certain categories of articles, paint stenciling is the requisite method. For other categories, paint stenciling or tagging of the bundles or the containers is permitted. These categories, which include thin-walled pipes and fittings, small-diameter pipes and fittings, other fittings, line pipe, coated pipes, and spun iron pipe, are described in detail in T.D. 86-15. In addition, ornamental pipes, tubes, and fittings of all types with a highly polished surface, are permitted to be marked by means of a durable and securely affixed tag or sticker, or by marking the protective wrapper.

Also in 1986, Congress enacted Pub. L. 99-514, 100 Stat. 2924 (1986), 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. 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. 92-70 which amended T.D. 86-15 to allow the country of origin marking of pipe, tube, and fittings by tagging the bundles or containers, but only with respect to small diameter pipe, tube, and fittings. It was specifically stated that pipe, tube, 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 did not consider tagging of containers or bundles an equally permanent marking method as paint stenciling. Therefore, it is only acceptable for small diameter pipe, tube, and fittings to be marked by tagging their bundles or containers. 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. However, Customs recognized in T.D. 92-70 that there may 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.

Lastly, 19 U.S.C. 1304(c)(1) was amended by section 207 of Title II (Customs Provisions) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2096 (1993), which designates "continuous paint stenciling" as one of the specified methods of marking pipe and pipe fittings, and deletes the reference to "paint stenciling" in 19 U.S.C. 1304(c)(2). Therefore, in order to mark by paint stenciling, it is no longer necessary to show that it is commercially or technically infeasible to mark by the other methods listed in 19 U.S.C. 1304(c). By enacting this amendment to 19 U.S.C. 1304(c), Congress reaffirmed its decision that the article must be permanently marked by only certain methods. Only in cases where it is technically or commercially infeasible to mark by one of the mentioned methods can an alternative be considered, and that alternative must be equally as permanent. Consequently, only bundles or containers of small diameter pipe, tube, and fittings may be tagged.

First, you cite HRL 734718 dated April 22, 1993, and HRL 734806 April 22, 1993, as support that marking the containers sufficiently complies with the country of origin marking requirements. You claim that individual marking is futile based on the nature of the merchandise and since the ultimate purchaser necessarily knows their country of origin because the fittings are substantially transformed by being subsumed into a fuel line, brake line, or similar assembly.

HRL 734806 held that mechanical tubing each marked with a securely affixed durable tag or sticker, or separately wrapped in a protective wrapping satisfied the country of origin marking requirements. However, it was stated that tagging only the bundles and not the individual tubes would not constitute permanent marking and would not be acceptable under 19 U.S.C. 1304(c)(2). It is also our opinion in this case that only if the fittings are not subject to the requirements of 19 U.S.C. 1304(c), may the exception of 19 U.S.C. 1304(a)(3)(H) (i.e., the ultimate purchaser necessarily knows the country of origin) be applicable.

Second, you claim that it is only technically or commercially feasible to mark the fittings by die-stamping the upper flat surface of the hex shape; however, this marking would be inconspicuous after the fitting is attached to metal tubing. Furthermore, cast-in-molding lettering is not possible since the fittings are not cast; etching or engraving after plating would destroy the protective surface, and would be obscured if performed prior to plating; and die-stamping on the flat side of the hex shape would threaten the product's integrity. In regard to paint stenciling, or individual stickers or wrappers, you state that HiSAN's customer does not want any marking on the fitting because they are viewed as contaminants, and would require removal before the fittings are acceptable to customers. Third, you allege that the legislative history of section 207 of the Trade and Tariff Act of 1984 (Pub. L. 98-573) which imposed the special requirements for pipe, tube, and pipe fittings, does not indicate that Congress was concerned with articles such as the fittings involved in this case. Instead, you claim that Congress was mainly concerned with the petroleum and energy related industries, and not automotive tube fittings since the language of Public Laws 98-573 and 99-514, as well as T.D. 86-15 and T.D. 92-70, refers to "pipe fittings" but not to "tube fittings". Accordingly, you allege that if Congress had intended to include "tube fittings", it would have so stated. You state that the petroleum industries refer to some product as "pipe" and other product as "tube"; however, there is no differentiation between fittings for these products, all of which are typically referred to as "pipe fittings." On the other hand, the automotive industry uses the term "tubing", but does not use the term "pipe."

You claim that as a general rule of statutory analysis, a statute is to be construed to carry out the legislative intent of Congress as reflected in the plain meaning of the language of the statute. United States v. Kurt Orban Co., Inc. 47 CCPA 28, C.A.D. 724 (1959). If the language chosen by Congress is clear and unambiguous, then there is no reason why the plain meaning should be rejected and another meaning put in its place. Akowo, Morimuro & Co. v. United States, 6 Ct. Cust. Appl. 379, 381, T.D. 35921 (1915). In other words, the meaning of the words chosen by Congress must be given effect, unless such a construction would produce an anomalous or manifestly unjust result. Intercontinental Fibres, Inc. v. United States, 64 CCPA 31, C.A.D. 1179, 545 F.2d 744 (1976). Therefore, since the language in section 1304(c)(1) is clear on its face and explicitly covers pipe and pipe fittings, and because the merchandise at issue is a tube fitting which serves a unique function in the automotive industry with a separate SAE number than automotive pipe fittings, you suggest that the tube fittings are outside the scope of subsection 1304(c)(1).

You further suggest that the principle of expressio unius est exclusio alterius applies, namely, that the expression of specific persons or things in a statute excludes alternative people or things. See Nissan Motor Mfg. Corp., U.S.A. v. United States, 884 F.2d 1375 (Fed. Cir. 1989). Consequently, you claim that there is no support for the conclusion that Congress intended to include tube fittings, or any other fittings except pipe fittings in subsection (c)(1).

In addition, since 19 U.S.C. 1304(c) is an exception to the general rule of law identified in section (a) that all merchandise must be marked, except as provided for in the list found in subsection (a)(3), it should be strictly construed and limited to its subject matter. Farrel Corp. v. United States Int'l Trade Commission, 13 ITRD 1897, 1899, 949 F.2d 1147 (1991), cert. denied, 14 ITRD 1096 (1992). You cite HRL 734104 dated September 3, 1991, as support, where Customs refused to extend the scope of 19 U.S.C. 1304(c) to hose fittings, although you disagree with the rationale which ties the classification of an article to its scope under 19 U.S.C. 1304(c).

We note that the principle of expressio unius est exclusio alterius is a canon of construction which must yield to the legislative intent, and is only controlling when other rules, legislative history, or circumstances do not more persuasively suggest a contrary congressional intent. American Import Co. v. United States, 26 CCPA 116, C.A.D. 3 (1938). It is also well established that in the construction of a statute the intention of the legislature is to be deduced from the whole statute and every material part of the same. The entire context must be considered and every effort made to give full force and effect to all the language contained therein. United States v. Invicta Seeland, Inc., 25 CCPA 300, 305, T.D. 49397 (1938). In addition, where subsequently enacted legislation includes language which did not appear in the earlier act, it is a legislative admission that the former language was not broad enough to include the matter added. Thalson Co. v. United States, 64 Cust. Ct. 418, C.D. 4011 (1970).

It is, therefore, our opinion that while the legislative history of Public Laws 98-573 and 99-514 does not explain Congress' intent, 19 U.S.C. 1304(c)(2) should be read in pari materia with subsection (c)(1); otherwise the reference in subsection (c)(2) to "small diameter pipe, tube, and fittings" would be rendered meaningless. Subsection (c)(2) was enacted after subsection (c)(1) because some of the original four prescribed methods of marking were not feasible. By adding the terms "tube" and the general reference to "fittings", subsection (c)(2) broadens subsection (c)(1). If subsection (c)(2) is not read in pari materia with subsection (c)(1), large diameter "fittings" (except pipe fittings) or "tube" would be excepted from the special marking requirements of 19 U.S.C. 1304(c)(1), and would only be subject to the requirements of 19 U.S.C. 1304(a) which allows the marking of their containers or bundles. Clearly, this would lead to anomalous results which would negate the specific reference to small diameter articles in subsection (c)(2). Accordingly, it is our opinion that the automotive fittings at issue are subject to the special marking requirements of 19 U.S.C. 1304(c) since they are considered pipes, pipe fittings, or tube fittings of iron or steel for classification purposes. This is also in accord with HRL 734104 and T.D. 86-15. Since we do not have a sample of a die-stamped fitting, we are unable to rule if the actual marking is acceptable under 19 U.S.C. 1304(c).


On the basis of the information submitted, we find that the imported fittings are subject to the special marking requirements of 19 U.S.C. 1304(c) since they are considered pipes, pipe fittings, or tube fittings of iron or steel for classification purposes. Since we do not have a sample of a die-stamped fitting, we are unable to rule if the actual marking is acceptable under 19 U.S.C. 1304(c).


John Durant, Director

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