HQ 0732362 - Country of Origin Marking of Containers When Contents Are Excepted from Marking - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1990 HQ Rulings > HQ 0732331 - HQ 0732810 > HQ 0732362

HQ 732362

May 26, 1989

MAR 2-05 CO:R:C:V 732362 LR

CATEGORY: MARKING

William C. Byrd
Area District Director
Charleston, South Carolina 29413-0876

RE: Country of Origin Marking of Containers When Contents Are Excepted from Marking

Dear Mr. Byrd:

This is in response to your memorandum dated April 4, 1989, requesting internal advice concerning the country of origin marking requirements of imported containers when their contents are excepted from marking.

ISSUE:

In what circumstances are disposable containers required to be marked to indicate the country of origin of the contents when the contents are excepted from marking?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires, subject to certain specified exceptions, that 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 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 general exceptions to marking are set forth in 19 U.S.C. 1304(a)(3)(A) -(K) and in {134.32, Customs Regulations (19 CFR 134.32).

19 U.S.C. 1304(b) sets forth the marking requirements for containers, when the contents are excepted from marking under 19 U.S.C. 1304(a)(3). In most cases, the container must be marked to indicate the country of origin of the contents which are excepted from marking.1/ A commonly used exception is

1/ If the container is reusable it would also have to be marked to indicate its own country of origin. See { 134.23, Customs Regulations.

19 U.S.C. 1304(a)(3)(D) which applies if the marking of a container of such article will reasonably indicate the origin of such article. The only instances in which the marking of the container is not necessary, is if the contents are excepted from country of origin marking requirements under 19 U.S.C. Regulations, which excepts the container from marking if the contents are excepted under { 134.32(f),(g) or (h), corresponding to 19 U.S.C. 1304(a)(3)(F),(G) & (H), respectively. 2/ In view of the fact that neither the article nor its container is required to be marked with the country of origin under these provisions, Customs has interpreted them narrowly.

19 U.S.C. 1304(a)(3)(F) provides an exception from marking when such article is imported for use by the importer and not intended for sale in its imported or any other form (emphasis added). Examples of articles imported for use by the importer include articles imported for showroom or for testing purposes, HQ 709199, June 28, 1978; samples which will not be sold, distributed or given away, but will be used by the importer for the solicitation of orders, HQ 732082, March 14, 1989; and, in the example you cite, rubber gloves imported by a company for use by its employees. In each case, both the imported article and its container are excepted from marking. However, if the company or person that is using the imported article (i.e., the ultimate purchaser) is not the importer, this exception is not applicable. Under these circumstances, the imported articles may qualify for an exception from marking under 19 U.S.C. 1304(a)(3)(D) provided the marking of the containers will reasonably indicate the origin of the articles. 3/

2/ {134.24(d), Customs Regulations (19 CFR 134.24(d)), provides that when the contents are excepted from marking, the usual disposable containers in use as such at the time of importation shall not be required to be marked to show the country of their own origin, but shall be marked to indicate the origin of their contents regardless of the fact that the contents are excepted from marking requirements. This provision must be read in conjunction with 19 U.S.C. 1304(b) and 19 CFR 134.22(d)(1) which specifically excepts the container from marking when the contents are excepted under 19 U.S.C. 1304(a)(3)(F),(G) & (H) and 19 CFR

3/ 19 U.S.C. 1304(a)(3)(F) is also inapplicable if the importer, as a result of further manufacturing operations, substantially transforms the imported article. In such circumstances, the importer is considered the ultimate purchaser and the imported article is excepted from individual marking under 19 U.S.C. 1304(a)(3)(D), provided the outermost container is marked. See { 134.35, Customs Regulations.

19 U.S.C. 1304(a)(3)(G) provides an exception if the imported article is to be processed in the U.S. by the importer or for his account otherwise than for the purpose of concealing the origin of such article and in such manner that any mark contemplated by this section would necessarily be obliterated, destroyed, or permanently concealed. {134.36(a), Customs Regulations (19 CFR 134.36(a)), provides that the exception is not applicable if there is a reasonable method of marking which will not be obliterated, destroyed, or permanently concealed by such processing. Although no country of origin marking would be required either on the imported article or its container, Customs has taken the position that the processed article is required to be marked to indicate the country of origin to the ultimate purchaser.

Finally, 19 U.S.C. 1304(a)(3)(H) provides for an exception to marking if the ultimate purchaser, by reason of the character of such article or by reason of the circumstances of its importation, must necessarily know the country of origin of such article even though it is not marked to indicate its origin (emphasis added). It is not sufficient that someone advise the ultimate purchaser of the country of origin. An instance where an ultimate purchaser would necessarily know the country of origin from the character of an article would be when the merchandise is produced in one country only, for example, black diamonds from Brazil. An instance where an ultimate purchaser would necessarily know the country of origin of an article by reason of the circumstances of its importation would be where the ultimate purchaser ordered articles manufactured for his account in a named country in circumstances in which the order could not be filled with articles manufactured elsewhere. Customs must be satisfied that under the terms of the sale, that the goods will be made in the country named in the invoice (HQ 709661, January 15, 1979).

It should be noted that {134.36(b), Customs Regulations (19 CFR 134.36(b)), provides that an exception from marking shall not apply to any article or retail container bearing any words, letters, names, or symbols described in { 134.46 or { 134.47 which imply that an article was made or produced in a country other than the actual country of origin. Accordingly, even though the article and its container would normally be excepted from marking in the circumstances outlined above, the exception would not apply if the article and/or the retail container bears a misleading marking.

HOLDING:

Disposable containers of articles excepted from country of origin marking under the provisions of 19 U.S.C. 1304 (a)(3)(F), (G) & (H), are not required to be marked with the country origin of the contents. Disposable containers of articles otherwise excepted from marking are required to indicate the country of origin of the contents.

Sincerely,

Marvin M. Amernick

Previous Ruling Next Ruling