NY A87627 - COUNTRY OF ORIGIN MARKING OF IMPORTED PACKING CONTAINERS AND LABELS, FROM CANADA; ARTICLE 509 - United States International Trade Commision Rulings

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NY A87627

October 1, 1996

MAR-2 RR:NC:2:234 A87627

CATEGORY: MARKING

Mr. Fred G. Beeby
Ross-Ellis Printing Inc.
300 Ann Street
Montreal, Que. H3C 2K2
CANADA

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED PACKING CONTAINERS AND LABELS, FROM CANADA; ARTICLE 509

Dear Mr. Beeby:

This is in response to your letter dated September 3, 1996, requesting a ruling on whether packing containers, imported empty, and certain related labels and printed matter, are required to be marked with their country of origin if they "are goods of a NAFTA country" and are only to be used as usual containers or for labelling purposes. Five marked samples, designated "#16" through "#20", were submitted with your letter for review.

Sample #16 is a 4 5/8" x 6" sheet of printed, perforated paper identified as a "CD-ROM Insert." It is said to be used to label the plastic "jewel box" that holds a CD-ROM disk.

Sample #17, identified as a "CD End Card or Top Card,"is a scored 2 1/2" x 5" piece of stiff paper, printed on one side and coated with two stripes of pressure-sensitive adhesive on the other. It is said to fit over the end or top of a plastic audio CD "jewel box." The printing consists of a recording's title, bar code, performer's name, and a brief description of content.

Sample #18 is a 4 3/4" x 11 1/2" sheet of printed, perforated paper identified as a "CDV Card Slimline." It is used to label a plastic "slimline box" which holds a 5" audio CD.

Sample #19 is a 3 3/4" x 4 1/2" printed paperboard "Blister Card" which will act as the package backing and label for a battery being sold at retail in a clear plastic "blister" (not included).

Sample #20, a "Cassette Slip Case," is an open-ended, printed paperboard folding carton designed to hold a set of three recorded audio cassettes (in plastic boxes) for retail sale.

You explain that your firm will ship the above-described items (in corrugated outer shipping cartons marked "Printed in Canada") to customers in the United States, who in turn will combine or fill them with products (e.g., recordings) manufactured in the U.S.A. Although the submitted samples are individually marked "Printed in Canada," you request permission to omit such marking. You note that end users (purchasers of the U.S. products) will essentially be buying tapes, CD's, batteries, etc., not paper packaging materials. In this connection, we note that some of the samples bear references to the U.S. addresses of the recordings' distributors.

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 such a manner as to indicate the ultimate purchaser in the U.S. 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 country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. You state that the imported items are only to be used for labelling purposes, or as usual containers, after importation into the U.S.

Section 134.22(d)(1) of the regulations, defines "usual containers" as
a usual container means the container in which the good will ordinarily reach its ultimate purchaser. Containers which are not included in the price of the goods with which they are sold, or which impart the essential character to the whole, or which have significant uses, or lasting value independent of the contents, will generally not be regarded as usual containers. However, the fact that a container is sturdy and capable of repeated use with its contents does not preclude it from being considered a usual container so long as it is the type of container in which the contents are ordinarily sold. A usual container, may be any type of container, including one which is specially shaped or fitted to contain a specific good or set of goods such as a camera case or an eyeglass case, or packing, storage and transportation materials.

In this case, we find that sample #20 is considered to be a "usual container" as defined in section 134.22(d)(1) of the regulations.

The issue is whether the imported usual containers, claimed to be goods of a NAFTA country, are required to be marked with their origin if imported empty or filled.

Section 134.22(d)(2) of the regulations, provides in part that

A good of a NAFTA country which is a usual container, whether or not disposable and whether or not imported empty or filled, is not required to be marked with its own origin. If imported empty, the importer must be able to provide satisfactory evidence to Customs at the time of importation that it will be used only as a usual container (that it is to be filled with goods after importation and that such container is of a type in which these goods ordinarily reach the ultimate purchaser). (Emphasis added)

In this case, assuming the imported containers are considered to be "goods of a NAFTA country" as claimed, and the conditions set forth in section 134.22(d)(2) of the regulations are satisfied, marking the imported containers with their own country of origin is not required, whether or not imported empty or filled.

Such marking is not required despite the references to U.S. locations, which in other circumstances might trigger the requirements of section 134.46 of the regulations. Section 134.46 requires that wording such as "Product of ______" appear in close proximity to such references, in order to avoid misleading or deceiving the ultimate purchaser as to the actual origin of the goods. However, Customs has held that the
requirements of section 134.46 do not apply in cases like the present one, in which the addresses appearing on the container clearly relate to the contents rather than the container itself.

Although samples #16 through #19 are merely pieces of printed paper or paperboard rather than "containers," they effectively become part of the packaging material used to put up merchandise for retail sale. As such, they may be viewed as extensions of the containers, and thus not subject to their own marking requirements, as discussed above.

Put another way, samples #16 through #19 can be looked upon as labels, or as printed materials having a similar function, i.e., providing information about the products with which they eventually will be sold. Customs has previously held that labels, imported in properly marked containers by customers who will apply them to their own U.S.-made goods, may be excepted from individual marking pursuant to section 134.32(d) of the regulations. (That is, the importers of the labels are considered the ultimate purchasers of same, the last to receive them in the form in which they were imported. The labels are deemed to subsequently lose their own identity and become an integral part of the U.S. goods to which they are attached.)

To sum up, in view of all the foregoing, the items represented by samples #16 through #20 will not be required to be individually marked with their own country of origin.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).

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 Carl Abramowitz at 212-466-5733.

Sincerely,

Roger J. Silvestri
Director

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