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HQ 557614




March 24, 1994

CLA-2 CO:R:C:S 557614 WAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9801.00.10

Mr. Michael Couch
Pacific Island Imports
P.O. Box 855
Skippack, PA 19474

RE: Applicability of subheading 9801.00.10, HTSUS, to Coca-Cola bottles from Emirau Island in the Bismark Archipelago

Dear Mr. Couch:

This is in reference to your letter dated August 25, 1993, regarding DD 887472 dated July 8, 1993, issued by the District Director, Laredo, TX, concerning the applicability of subheading 9801.00.10, Harmonized Tariff Schedule of the United States (HTSUS), to empty Coca-Cola bottles imported from the Emirau Island in the Bismark Archipelago into the U.S.

FACTS:

The merchandise at issue consists of old Coca-Cola bottles, dating between 1942 through 1945. You state that these bottles had been left on the Pacific Islands by United States Marines during World War II. You also state that Pacific Islands Imports intends to market them as souvenirs in the U.S. They are described as six fluid ounce, contour-shaped, green and white (clear) bottles, bearing patent number D105529. Both the green and the clear bottles are embossed with their year of manufacture and with the manufacturing mark of Owens Illinois, however, only the green bottles are embossed with the U.S. country of origin marking.

In DD 887472, the Laredo Customs District found that those bottles embossed with the U.S.-origin marking, were eligible for duty-free treatment under subheading 9801.00.10, HTSUS, while those bottles which were not marked to indicate their U.S.-origin, would be fully dutiable under either subheading 7013.99.4000 or 7013.99.5000, HTSUS, depending upon their value.

Subsequent to the issuance of DD 887472, you submitted additional evidence to show that both the green and clear Coca-Cola bottles were of U.S.-origin in the form of:

(1) A list of trademarks used by Coca-Cola Bottle Manufacturers identifying the markings on the subject bottles to be those of Owens Illinois;

(2) A letter from Coca-Cola archives department stating that the origin of these bottles was the U.S.;

(3) Documents issued by Papua, New Guinea government certifying where these bottles were found and their historic authenticity.

You claim that this additional information should be sufficient to establish that the Coca-Cola bottles imported from the Emirau Island in the Bismark Archipelago are of U.S.-origin, and therefore, should be eligible for duty-free treatment under subheading 9801.00.10, HTSUS, when returned to the U.S.

ISSUE:

Whether the green and clear Coca-Cola bottles are entitled to duty-free treatment under subheading 9801.00.10, HTSUS.

LAW AND ANALYSIS:

Subheading 9801.00.10, HTSUS, provides for the free entry of U.S. products that are exported and returned without having been advanced in value or improved in condition by any means while abroad, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met. While some change in the condition of the product while it is abroad is permissible, operations which either advance the value or improve the condition of the exported product render it ineligible for duty-free entry upon return to the U.S. See Border Brokerage Company Inc. v. United States, 65 Cust. Ct. 50, C.D. 4052, 314 F. Supp. 788 (1970), appeal dismissed, 58 CCPA 165 (1970).

Compliance with section 10.1(a) is mandatory and a condition precedent to recovery unless compliance has been waived or is impossible. Maple Leaf Petroleum, Ltd. v. United States, 25 CCPA 5, T.D. 48976 (1937). The basis for waiver of the required documentation is predicated on the Customs Service being satisfied by the production of other evidence as to the U.S. origin of the merchandise and its eligibility under 9801.00.10, HTSUS.

The question presented in this case is whether the evidence you submitted is sufficient to establish that the green and clear Coca-Cola bottles imported into the U.S. from the Emirau Island in the Bismark Archipelago are "products of" the U.S.

In view of the additional information you have submitted, we are of the opinion that you have established that both the green and clear Coca-Cola bottles are "products of" the U.S. You have shown that both the green and clear bottles are embossed with the Owens Illinois trademark. A telefax from Coca-Cola dated August 23, 1993, confirms that the bottles containing the manufacturing trademark of Owens-Illinois were produced in the U.S. and that Owens-Illinois was in operation during the period from 1942 through 1945. This telefax also states that Coca-Cola believes that all of the World War II bottles that have been discovered in the South Pacific region over the last several years were produced in the U.S. and shipped to American troops in that area. In the August 23, 1993 telefax, Coca-Cola states that the bottles produced during World War II were 6 1/2 ounces in volume, but that they were marked, for legal reasons, as containing a minimum content volume of 6 fluid ounces. In addition, Coca-Cola states that most of the bottles produced during World War II for domestic consumption were green, and the clear bottles were targeted for overseas consumers.

In a letter to you dated September 13, 1993, a representative from Owens-Brockway (a unit of Owens-Illinois) confirmed that the registered trademark found on the Coca-Cola bottles during the time period in question identify Owens-Illinois as the domestic manufacturer of the subject bottles. The letter also stated that Owens-Brockway manufactured for Coca-Cola during the period from 1942 through 1945. This letter was resubmitted directly to Customs Headquarters on March 22, 1994, under a declaration of its truth and accuracy.

HOLDING:

Based on the information submitted, we are of the opinion that the green and clear Coca-Cola bottles described herein which are imported from the Emirau Island, are "products of" the U.S. Therefore, as these bottles have not been advanced in value or improved in condition abroad, they will qualify for the duty exemption available under subheading 9801.00.10, HTSUS, when returned to the U.S.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division


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