HQ 560487 - Eligibility of marking exceptions for petri dishes imported from Canada; usual containers; NAFTA; 19 CFR 134.22. - United States International Trade Commision Rulings

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HQ 560487

September 23, 1997

MAR-02 RR:TC:SM 560487 JML

CATEGORY: MARKING

Mr. Richard P. Ferrin, Esq.
Mr. Douglas J. Heffner, Esq.
Rogers & Wells
607 Fourteenth St., N.W.
Washington, D.C. 20005-2018

RE: Eligibility of marking exceptions for petri dishes imported from Canada; usual containers; NAFTA; 19 CFR 134.22.

Dear. Mr. Ferrin and Mr. Heffner:

This is in response to your letter of May 20, 1997, to Mr. Joseph Wilson , Port Director of the Port of Buffalo, which was forwarded to our office for consideration of the issues contained therein. Specifically, you request a binding ruling regarding the country of origin marking requirements for Canadian origin petri dishes. You have submitted samples of the packaged petri dishes for our review.

FACTS:

Your client, Kord Products Ltd. ("KPL"), is a Canadian manufacturer of petri dishes. The petri dishes serve as containers for various microorganisms and similar media. Once they have been filled with their contents, the petri dishes are not capable of reuse.

After manufacture, KPL wraps empty petri dishes in Canadian origin hermetically sealed sleeves for export to the United States ("U.S."). KPL's U.S. customer is PML Microbiologicals ("PML"). PML purchases the petri dishes, and fills them with U.S. origin microorganisms. The microorganisms are then sold at retail to various U.S. customers.

You contend that the imported petri dishes should be excepted from the country of origin marking requirements of 19 U.S.C. ?1304. First, you state that the petri dishes are "usual containers" within the meaning of section 134.22, Customs Regulations (19 CFR 134.22) and are therefore excepted from individual marking. Additionally, you state that the petri dishes are "disposable containers" under section 134.24, Customs Regulations (19 CFR 134.24) which are similarly excepted from country of origin marking. Alternatively, you contend that the U.S. customer which fills the petri dishes with their contents is the "ultimate purchaser" of the articles which excepts them from the country of origin marking.

ISSUE:

Whether the imported Canadian origin petri dishes are excepted from the country of origin marking requirements of 19 U.S.C. ?1304.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 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 its 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. Congressional intent in enacting 19 U.S.C. ?1304 was "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 the 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." United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. ?1304.

Section 134.1(b) of the regulations, defines "country of origin" as:
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the country of origin' within this part; however, for a good of a
NAFTA country, the NAFTA marking rules will determine the country of origin. (Emphasis added).

Section 134.1(g), Customs Regulations (19 CFR 134.1(g)) defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico, or the U.S as determined under the NAFTA Marking Rules. Since we were not provided with information concerning the production of the petri dishes, we will assume for purposes of this ruling that their country of origin is Canada and that consequently they are goods of a NAFTA country. You contend that the petri dishes are usual containers of microorganisms which except them from being individually marked with their country of origin.

Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) provides that "[t]he ultimate purchaser' is generally the last person in the United States who will receive the article in the form in which it was imported; however, for a good of a NAFTA country, the ultimate purchaser' is the last person in the United States who purchases the good in the form in which it was imported."

A usual container is defined in section 134.22(d)(1), Customs Regulations (19 CFR 134.22(d)(1)), which provides that:

For purposes of this subpart, a usual container means the container in which a 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 its 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.

Section 134.22(d)(2), Customs Regulations (19 CFR 134.22(d)(2)), provides 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 country of 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).

Furthermore, section 134.24(c)(1), Customs Regulations (19 CFR 134.24(c)(1)), states that when usual containers which are goods of a NAFTA country are imported by persons or firms who fill or package them with various products they sell, those persons or firms are considered the ultimate purchasers of the containers, and they may be excepted from individual marking. The outside wrappings or packages containing the containers must be marked to clearly indicate the country of origin of the containers, however.

In Headquarters Ruling Letter ("HRL") 735588, dated February 10, 1995, glass containers of Mexican origin were imported into the U.S. to be filled with beverages, e.g., Coca-Cola (or other similar products) by U.S. customers. In that case, we found that such containers were considered to be the type of usual containers defined in section 134.22(d)(1), Customs Regulations, regardless of whether the containers were returned by the consumer after the contents have been consumed. Therefore, pursuant to 19 CFR 134.22(d)(2), Customs Regulations, we held that the glass containers were excepted from being marked with their own country of origin. However, we also pointed out that pursuant to section 134.24(c)(1), Customs Regulations, the outermost containers in which the glass containers were imported and reached the ultimate purchasers in the U.S., were required to be marked with the country of origin (of the glass containers), Mexico. In HRL 559073, dated June 28, 1995, containers of Mexican origin imported empty to be filled with cosmetic products by the ultimate purchaser in the U.S., and designed to be discarded after use, were considered to be usual containers as defined section 134.22(d)(1), Customs Regulations. Therefore, pursuant to section 134.22(d)(2), Customs Regulations, the containers were excepted from being marked with their own country of origin. However, under section 134.24(c)(1), Customs Regulations, the outermost containers in which the cosmetic containers were imported and reached the ultimate purchaser in the U.S. (the company which filled the cosmetic containers) were required to be marked with the country of origin (of the cosmetic containers).

In light of the above rulings, applying the usual container definition of section 134.22(d)(1), Customs Regulations, to this case leads to the conclusion that the petri dishes are containers in which the microorganisms will "ordinarily" reach their ultimate purchaser. There is no indication that the petri dishes are not included in the price of the microorganisms. Second, once the petri dishes are filled with the microorganisms, the dishes clearly do not impart the "essential character" of the article. Third, while the petri dishes do appear to be made of a hard plastic, because of the obvious nature of microorganisms which the petri dishes are designed to contain, once filled, they are not reusable. Thus, we do not find them to have any "lasting value independent" from their use with the microorganisms. Accordingly, we find that the petri dishes are "usual containers" within the meaning of section 134.22(d)(1), Customs Regulations. As such, they are excepted from being marked individually with their country of origin, although the outermost packaging containing the petri dishes must be marked to indicate the country of origin (of the petri dishes). However, given that the petri dishes are imported empty, pursuant to section 134.22(d)(2), Customs Regulations, the importer must be able to provide satisfactory evidence to Customs at the time of importation to establish that the petri dishes will only be used as usual containers.

As we have determined that the Canadian origin petri dishes are excepted from the country of origin marking requirements on the basis of being usual containers of a NAFTA country pursuant to section 134.22(d)(1), Customs Regulations, we do not reach the merits of your other arguments.

HOLDING:

Based upon the information provided, it is our opinion that the petri dishes are usual containers within the meaning of 19 CFR 134.22(d)(1), Customs Regulations, and therefore are not required to be individually marked with their own country of origin, provided the importer is able to provide satisfactory evidence to Customs at the time of importation that the petri dishes will be used only as usual containers for microorganisms. The outer wrapping containing the petri dishes must be marked with the country of origin of the petri dishes.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. 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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