Marking of stainless steel beer kegs

N284767 April 17, 2017 MAR-2-73:OT:RR:NC:1:230 CATEGORY: Marking Ms. Bethany Hatef McDermott, Will & Emery LLP 500 North Capitol Street NW Washington, DC 20001 RE: Marking of stainless steel beer kegs Dear Ms. Hatef: In your letter, dated March 24, 2017, you requested a binding marking ruling on behalf of your client, The Brewers Association. The ruling was requested on the marking of stainless steel beer kegs. Several scenarios were submitted for our review. The scenarios presented regard the importation of beer kegs by both third-party importers and U.S. brewers. You request guidance on marking when title on the imported goods passes from a foreign manufacturer to a U.S. importer, when title passes to the U.S. importer but possession of the kegs passes directly to the domestic brewer, and when title and possession pass from the manufacturer directly to the U.S. brewer. You suggest multiple scenarios wherein the kegs are a) imported empty and packed loose in the shipping container, b) are imported empty and packaged in bags or boxes, c) are imported empty and shrink-wrapped on a pallet, or d) are imported filled and shrink-wrapped on a pallet. In all scenarios, the brewer fills the kegs (where applicable) and sells the beer to a distributor, who, in turn, sells the beer to a retail establishment, such as a bar. You state that the kegs are then returned to the brewer for refilling. First, you ask in your letter whether the kegs qualify as “usual containers”. “Usual containers” are defined in Title 19, Code of Federal Regulations (CFR), Section 134.22(d) (19 CFR 134.22(d), which states that “a usual container means the container in which a good will ordinarily reach its ultimate purchaser.” This definition is qualified, however, by the following statement: “Containers which…(have) lasting value independent of the contents, will generally not be regarded as usual containers.” Because the kegs are refilled and reused, they have lasting value independent of their contents. They, therefore, do not qualify as “usual containers”. Kegs imported empty are also not usual containers, as they do not contain goods; they are considered to be imported articles rather than packaging. Where kegs are imported empty, 19 CFR 134.22(b) can govern marking. This section states that “Containers or holders for imported merchandise which are subject to treatment as imported articles under the Harmonized Tariff Schedule of the United States (19 USC 1202), shall be marked to indicate clearly the country of their own origin in addition to the country of origin of their contents…” Beyond 19 CFR 134.22(b), 19 CFR 134.23 would control marking in every scenario you suggest. This regulation states: …containers or holders designed for or capable of reuse after the contents have been consumed, whether imported full or empty, must be individually marked to indicate the country of their own origin with a marking such as “Container Made in (name of country).” Examples of the containers or holders contemplated are heavy duty steel drums, tanks, and other similar shipping, storage, transportation containers or holders capable of reuse. Because the kegs, in all of your suggested scenarios, are clearly suitable for repetitive use, the above regulation governs the marking of the kegs; each keg must be marked with the country of origin. 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 your letter, you also suggest that the beer kegs meet the definition of “instruments of international traffic”. We disagree. The kegs do not meet this definition for multiple reasons. First, you have not established that the kegs are imported, emptied, and re-exported for refilling. Second, the kegs enter the U.S. commerce. If the kegs are diverted from international traffic and are used domestically, they will cease to be considered instruments of international traffic. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Laurel Duvall at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division