HQ 0734596 - Country of Origin Marking of Vinyl Blanket Bags Imported to be Filled with Durable Goods; 19 CFR 134.23(a); C.S.D. 87- 1; HQ 734190; HQ 726298 revoked. - United States International Trade Commision Rulings

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HQ 734596
August 6, 1992

MAR-2-05 CO:R:C:V 734596 ER

CATEGORY: MARKING

Ms. Phyllis Timpone
ITP Corporation
P.O. Box 2345
South Hackensack, N.J. 07606-2345

RE: Country of Origin Marking of Vinyl Blanket Bags Imported to be Filled with Durable Goods; 19 CFR 134.23(a); C.S.D. 87- 1; HQ 734190; HQ 726298 revoked.

Dear Ms. Timpone:

This is in response to your letter of April 6, 1992, in which you request a ruling regarding the country of origin marking requirements for 4 mil vinyl blanket bags imported from China and Taiwan.

FACTS:

Clear vinyl blanket bags, made of gauge (4 mil or less), are imported empty from Taiwan and China and are designed to completely enclose the merchandise with which they are subsequently filled. The sample bag submitted with the ruling request measures approximately 18" in length, 15" in width, 5" in depth and is box-like when opened and filled. The edges of the bag are stitched together and the top is fitted with a zipper which is sewn to three sides of the opening.

The bags are not individually marked with country of origin but are sold in cartons marked with country of origin to American textile manufacturers such as Dan Rivers, West Point Pepperell, Crown Crafts, Whiting Manufacturing and The Bibb Company. The empty bags are filled by the textile manufacturers with blankets for retail sale. It is your opinion that when the bags are individually marked with country of origin, confusion results to the retail buyer as to the country of origin of the contents.

Copies of letters from Crown Crafts, Inc., Stevens Home Fashions, Dan River Inc., and Louisville Bedding Company were enclosed. These letters state that the company purchasing the vinyl bags is a domestic customer of either ITP or Greenway Industries Corp., is aware of the country of origin of the unmarked bag by virtue of the marking on the carton in which the bags are received, and requests that individual marking of the bags be waived because of the confusion that results to the retail buyer regarding the origin of the contents. The various products referenced in these letters which are packed inside the vinyl bags for retail sale include, textile products generally, accessories presumably for home fashions, comforters, and mattress pads.

ISSUE:

Whether the vinyl bags imported empty to be filled with various products constitute reusable or disposable packaging for purposes of the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, Subpart C.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304) provided 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 the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The purpose of the marking statute is set forth in United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302, C.A.D. 104 (1940), where the court stated that Congress intended that the ultimate purchaser should be able to know by an inspection of the marking on imported goods the country of which the goods are a product. The purpose is to mark the goods so that at the time of purchase, the purchaser may, by knowing where the goods were produced, by able to buy or refuse to buy them, if such marking should influence his will.

In order to determine whether the vinyl bags are excepted from country of origin marking requirements, it is first necessary to establish whether the bags are disposable or reusable containers as well as to ascertain the identity of the ultimate purchaser of the bags within the meaning of 19 U.S.C. 1304.

Disposable containers are defined as the usual ordinary types of containers or holders which are ordinarily discarded after the contents have been consumed (e.g., cans, bottles, paper bags, etc.). See section 134.24(a), Customs Regulations (19 CFR 134.24(a)). The person or firm who fills such containers is considered to be the ultimate purchaser and the containers are excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D). Only the outside wrappings or packages for these containers shall be marked to indicate the country of origin. See section 134.24(c), Customs Regulations (19 CFR 134.24(c)).

A reusable container is one which is designed for or is capable of reuse after the contents have been consumed. If these containers have a lasting value or decorative use (e.g., fancy cologne bottles reusable as flower vases and mustard jars reusable as beer mugs) they must be individually marked with their own country of origin. See section 134.23, Customs Regulations (19 CFR 134.23). The consumer purchasing the contents is considered to be the ultimate purchaser of the containers.

In C.S.D. 87-1 (October 10, 1986) Customs considered whether imported plastic shopping bags, given by retail stores to their customers with the purchase of items, were subject to the country of origin marking requirements of 19 U.S.C. 1304. In that case Customs found that the "ultimate purchaser" of the plastic shopping bags was not the retail store, but its customer who was the user of the bags and the last to receive them in the form in which they were imported. Here, Customs also distinguished between "flimsy" plastic bags, of the "throw-away" variety, and those of a durable nature, with a use and identity separate from their contents. Thus, since the bags were durable enough to be used again, individual marking was required. The decision was affirmed on reconsideration (HQ 730530 (July 9, 1987)). See also HQ 734495 (April 21, 1992) (decorative tins imported empty to be filled with merchandise for retail sale, constitute reusable containers) and HQ 729476 (October 10, 1986) (plastic shopping bags are durable and capable of reuse). Cf., C.S.D. 88-28 and HQs 733716 (June 6, 1991), 733675 (May 16, 1991), and 731661 (December 16, 1988) where the containers were disposable.

In response to a request for internal advice (HQ 734190 (November 18, 1991)), a case factually similar to the one at hand, Customs ruled that vinyl bags imported empty to be filled with durable goods (blankets and pillows) constitute reusable containers subject to individual country of origin marking. There, Customs noted that pursuant to 19 CFR 134.23, containers are considered reusable if they are either designed for or capable of reuse after the contents have been consumed, or impart the essential character to the whole importation. Finding the vinyl bags to be of durable nature and capable of repetitive use and distinguishable from the "flimsy" bags ordinarily discarded after the contents are consumed, Customs directed that the vinyl bags be individually marked to indicate the country of their own origin with a marking such as, "Bag Made in (name of country)." HQ 734190 supra evidenced the affirmative departure from the position previously adopted in HQ 726298 (September 17, 1986) regarding the marking of vinyl blanket bags.

Applying these considerations to the vinyl bags at issue, Customs is of the opinion that the subject bags are designed for and capable of reuse. Therefore, the consumer purchasing the vinyl bags and their contents is the ultimate purchaser and the bags are not excepted from individual marking pursuant to 19 CFR 134.24 and 19 U.S.C. 1304(a)(3)(D) and must be conspicuously marked to indicate their own country of origin. The type of bag submitted as a sample is of sturdy construction and is designed to be retained by the ultimate purchaser after its contents are removed to be used again as a storage device or as a container for other items. Additionally, these bags are well-suited for reuse since they are equipped with a zipper which enables them to be easily opened and resealed, thus permitting repetitive access.

Accordingly, the marking requirements of section 134.23(a) are applicable and the vinyl bags must be individually marked with their own country of origin. An appropriate marking for the vinyl bags would be "Bag made in ", or similar language. Such a marking would also alleviate any consumer confusion regarding the origin of the contents. To the extent that HQ 726298 supra is inconsistent with this decision it is hereby revoked.

HOLDING:

The vinyl bags imported empty to be filled with merchandise for retail sale constitute reusable containers for purposes of the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Accordingly, the vinyl bags must be individually and conspicuously marked "Bag made in (name of country)" (or other similar marking).

Sincerely,

John Durant, Director

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