HQ 0733675 - Country of origin marking requirements of disposable containers imported to be filled. 19 CFR 134.24(c); 19 CFR 134.46; 715298; 716243; 731698 - 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 > 1991 HQ Rulings > HQ 0733323 - HQ 0733768 > HQ 0733675

HQ 733675

May 16, 1991

MAR-2-05 CO:R:C:V 733675 EAB

CATEGORY: MARKING

Michael F. Mitri, Esquire
Donohue and Donohue
1177 Summer Street
Stamford, Connecticut 06905

RE: Country of origin marking requirements of disposable containers imported to be filled. 19 CFR 134.24(c); 19 CFR 134.46; 715298; 716243; 731698

Dear Mr. Mitri:

This is in response to your two letters dated July 24, 1990, in which you request a ruling on behalf of your client, Himont U.S.A., Inc., addressing the country of origin marking of certain packaging made either in India or Canada for your client.

FACTS:

Himont U.S.A., Inc., a domestic manufacturer and seller of polypropylene resin, imports empty polypropylene packaging bags from Canada or India and fills them in the U.S. with its product. A sample bag has been submitted and visually examined. The bags are classified under subheading 6305.31.0020-8 of the Harmonized Tariff Schedule of the United States (HTSUS) as "sacks and bags, of a kind used for the packing of goods, ... of ... polypropylene strip." The bags are currently printed with various information prior to the time they enter the U.S. Most prominent is the company name, "Himont", which appears in large print on the front center of each bag and in smaller print along the side. Beneath the company name, on the front of each bag, appears the designation "Pro-fax Polypropylene", the brand name of the resin with which the bags will be filled, followed immediately by "Made in U.S.A. by Himont U.S.A., Inc., Wilmington, DE". Adjacent to this information are "net wt. 25 kg (55.1 lbs), gross wt. 25.1 kg (55.4 lbs)" and Himont's disclaimer of express or implied warranties "with respect to the use of this material". On the side of the bags, next to the company name, again appears "Pro- fax Polypropylene" followed by "Made in U.S.A. by Himont U.S.A., Inc." Finally, in a small box on the reverse side of each bag, Himont has printed, in English and French, the origin of the bag: "Bag Manufactured in Canada [or 'India']".

The bags are shipped empty to the U.S. in large cardboard boxes, approximately 2,000 to 2,200 bags packed flat in each box. The boxes are presently labelled on all sides with the company name, the size of the bags and the number of bags in each box. The boxes are stacked on pallets and arrive unopened in such condition at Himont's plants in Lake Charles, Louisiana and Bayport, Texas.

In the U.S., Himont machine-fills the empty bags with its Pro-fax resin through a slot at the top of the bags and then seals the bags. Himont sells the resin thus packaged to domestic and foreign purchasers. Himont does not sell the bags empty, but only as filled with its product. Once the purchasers have unpacked the resin, the bags may not be resealed in the manner in which they were originally sealed. The bags are not designed for reuse and, to Himont's knowledge, are discarded after their contents have been consumed.

You request a ruling that the subject bags are exempt from individual country of origin marking, and that for all future importations of such bags, the marking "Bag Manufactured in (country of origin)", or any similar phrase, not be required.

ISSUES:

Are imported polypropylene bags used to package U.S. origin polypropylene resin required to be individually marked with their country of origin? Do the requirements of 19 CFR 134.36(b) and 19 CFR 134.46 apply to such bags?

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 purpose of the marking statute is set forth in United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940), in which the court stated that "Congress intended 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 a 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.
The disposition of this ruling request depends upon the outcome of two related inquiries. First, are the polypropylene bags disposable containers? Second, who is the ultimate purchaser of the bags within the meaning of 19 U.S.C. 1304? Upon consideration of the arguments and evidence presented, taking into account the language and purposes of the statute and regulations, and having reviewed our prior determinations, it is our opinion that imported polypropylene bags are disposable containers. Polypropylene bags imported to be filled by domestic manufacturers of polypropylene resin are excepted from individual country of origin marking pursuant to 19 CFR 134.24(c)(1). That section provides that persons or firms who import disposable containers in order to fill them with products they sell are the ultimate purchasers of the containers. Such containers are excepted from country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D), although at the time of importation their outside wrappings or packaging must be marked with the containers' country of origin.

Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines "ultimate purchaser" as generally the last person in the U.S. who will receive the article in the form in which it was imported. For example, Customs determined in HQ 729239 (January 3, 1986) that the ultimate purchaser of disposable bags is the company that buys and uses them to package its goods, even if the company is not the importer. After packaging, the disposable container becomes an integral part of the article with which it is packaged, and is no longer a separate article of commerce. As such, the packager is the last person who receives the disposable container in the form in which it was imported.

Subpart C of 19 CFR Part 134, which provides for the country of origin marking of containers, recognizes two broad categories of containers. Section 134.23 specifies that reusable containers, which must be individually marked with their country of origin, are either: 1) those usual and ordinary containers designed for or capable of reuse after their contents have been consumed, such as heavy duty steel drums, tanks, and other similar shipping, storage, or transportation containers; or 2) containers which give the whole importation its essential character, having lasting value or decorative use. Section 134.24 provides that disposable containers are the usual and ordinary types of containers or holders, including cans, bottles, paper or polyethylene bags, paperboard boxes, and similar containers or holders which are ordinarily discarded after the contents have been consumed. Disposable containers which are packed and sold in multiple units may be marked to indicate their country of origin on the outermost container which reaches the ultimate purchaser.

A review of our previous rulings in this area leads to the conclusion that polypropylene bags fall squarely within the category of disposable containers. We have previously ruled that plastic boxes with separate tops and bottoms used to store U.S.- origin crayons were disposable containers. HQ 729943 (November 13, 1986). Similarly, in HQ 731318 (August 12, 1988) we ruled that vinyl cases for birth control pills are disposable containers within the meaning of 19 CFR 134.24. Finally, in HQ 729817 (November 13, 1986), we ruled that cardboard cartons to be packed in the U.S. with bottles of wine cooler are disposable containers.

In HQ 729476 (October 10, 1986), we determined that the ultimate purchaser of a plastic shopping bag was the retail customer of the store which provided it, since the bag was durable and capable of reuse. We noted in that ruling that, unlike the polypropylene bags, the plastic bag was not the primary container for the merchandise sold by the store, and was provided free of charge for the convenience of the store's customers. We have consistently ruled that when an article is provided as a gift or convenience, the donee or recipient is the ultimate purchaser and the article must be individually marked with its country of origin. See, 19 CFR 134.1(d)(4); C.S.D. 89- 89 (March 18, 1989); HQ 729800 (October 10, 1989). The polypropylene bags, by contrast, are the primary containers for the polypropylene resin, and it may reasonably be assumed that the cost of the bags is included in the price of the polypropylene resin. The bags are not provided merely as a convenience to the purchaser of the polypropylene resin, but are the usual and ordinary containers of it.

Also, we find that the polypropylene bags in this case are not reusable and do not qualify as separate articles of commerce. In construing the container provisions of subpart C of 19 CFR Part 134, we are guided by the regulation's terms "usual", "ordinary", "designed for" and "not designed for". These terms indicate that we are to take into account the ordinary purpose and capability for which the container is created. Absent compelling reasons not shown here, we are directed by subpart C of 19 CFR Part 134 to treat a polypropylene bag as a container. It has not been demonstrated, for example, that there is a market for polypropylene bags beyond manufacturers of polypropylene resin. It has not been demonstrated that a purchaser would refuse to buy polypropylene resin on the basis that the bag in which it is sold is of foreign origin.

We note that General Rule of Interpretation (GRI) 5(b) of the Harmonized Tariff Schedule of the United States (HTSUS) provides that packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing the goods. This provision does not apply when the packing materials or containers are "clearly suitable for repetitive use". We take this rule in this case as further indication that for Customs purposes a polypropylene bag which is normally used to package polypropylene resin is not, when it reaches the ultimate purchaser of the polypropylene resin, an article of commerce separate from its contents.

As is evident from the foregoing discussion, we are also not persuaded that polypropylene bags are reusable containers. It has not been demonstrated that, in the words of GRI 5(b), HTSUS, the polypropylene bags are "clearly suitable for repetitive use." Among the examples of disposable containers set forth in 19 CFR 134.24 are "polyethylene bags and similar containers". Our previous rulings cited above, that plastic containers, pill boxes and cardboard cartons for wine coolers are disposable containers excepted from individual country of origin marking, are consistent with this approach.

Finally, 19 CFR 134.36(b) and 19 CFR 134.46 require that the country of origin of the polypropylene bag appear in close proximity to any words or symbols which indicate a country other than the country of origin of the bag. The purpose of these provisions is to prevent any misleading or possible deception of ultimate purchasers as to the country of origin of imported articles.

Section 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 section 134.46 which imply that an article was made or produced in a country other than the country of origin. Facially, the sample bags present this issue. The bag for polypropylene resin bears the address of the resin manufacturer and the words "Made in U.S.A.". The box for Sebago polypropylene resin bears no marking other than the word "Sebago" which, arguably, is also the kind of geographic name described in section 134.46. However, upon consideration of our prior rulings on this point and examination of the sample boxes, it is our opinion that the markings on the boxes imply that the polypropylene resin to be placed in the boxes and not the boxes themselves were made in the U.S. Therefore, an exception from individual country of origin marking for these polypropylene bags is not precluded by section 134.36(b).

In ruling 731388 (June 11, 1988), we considered whether potato bags from Canada imported to pack U.S.-grown potatoes had to be individually marked with their country of origin. The bags were marked with the U.S. address of the bag manufacturer as well as the U.S. address of the potato producer. We determined that the presence of the U.S. address of the maker of the Canadian bags tended to imply that the bags were of U.S. origin, and that pursuant to section 134.36(b) the bags could not be excepted from individual country of origin marking. We stated that had the address of the produce company only appeared on the bags these words would have implied only that the potatoes were of U.S. origin. Similarly here, where the names and addresses of the U.S. resin manufacturers are the only markings on the polypropylene bags, there can be no reasonable inference that the addresses suggest the origin of the box; they plainly refer to the resin manufacturer. In HQ 729817 supra, we ruled that there was no inconsistency between a U.S. marking on an imported disposable container for a wine cooler and the U.S. origin of the wine. Therefore, the disposable container did not have to be marked with its own country of origin. Similarly, the purchaser of polypropylene resin packaged in a disposable container would fully expect the container to bear information concerning its contents, and there is no possibility of misleading the ultimate purchaser as to the country of origin of the polypropylene resin. Accordingly, we find that section 134.36(b) does not apply to preclude the granting of an exception from individual country of origin marking for the polypropylene bags as disposable containers pursuant to 19 CFR 134.24(c)(1). Since no country of origin marking of the bag is required, the provisions of 19 CFR 134.46 do not apply.

HOLDING:

Polypropylene bags imported by Himont, U.S.A., Inc. to package domestic origin polypropylene resin are disposable containers excepted from individual country of origin marking pursuant to 19 CFR 134.24(c)(1). 19 CFR 134.36(b) does not apply to such polypropylene bags to preclude the application of the exception or to require additional country of origin marking.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling