HQ 560705 - Country of origin marking requirements for plastic carrier trays and anti-static bags used for packaging integrated circuits; usual containers; 19 CFR134.22(d) - United States International Trade Commision Rulings

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HQ 560705

January 28, 1998

MAR-2 RR:CR:SM 560705 RSD

CATEGORY: MARKING

Donald Alford Weadon, Jr., Esq.
Weadon & Associates
1819 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

RE: Country of origin marking requirements for plastic carrier trays and anti-static bags used for packaging integrated circuits; usual containers; 19 CFR134.22(d)

Dear Mr. Weadon:

This is in response to your letter dated October 15, 1997, on behalf of Toshiba America Electronic Components, Inc. (hereinafter "Toshiba") requesting a ruling regarding the country of origin marking requirements for carrier trays and anti-static bags used in packaging integrated circuits. Enclosed with your letter were samples of carrier trays containing integrated circuits, an anti-static bag, and a cardboard box in which they will be packaged.

FACTS:

Toshiba is an importer of integrated circuits assembled and encapsulated abroad. The integrated circuits produced by Toshiba may have various countries of origin, and each device will be marked with its own country of origin. The devices are packaged in plastic carrier trays, which hold up to sixty-six individual devices. The carrier trays are supplied to Toshiba or its parent corporation at the assembly point. The sample trays are made out of heavy black plastic and have a separate compartment to place each integrated circuit. Often, the trays are marked with their own country of origin.

After the carrier trays are loaded with the finished and tested devices, they are then packaged in an opaque heat-sealed anti-static dry-pack bag, which protects the devices from humidity and static electricity. A label identifying the enclosed devices and supplying important information such as the quantity, date code and the packing date is affixed to the anti-static bags. This dry pack label also indicates the country origin of the devices. The dry pack label on the sample anti-static bag, is marked " MADE IN HONG KONG" in black letters against the white background of the label. The anti-static bag containing the carrier trays filled with the integrated circuits is then packed and shipped inside a cardboard carton which is sealed with adhesive tape.

A white adhesive label is placed on the sample cardboard carton. The label gives important information regarding the circuits including the country of origin marking "MADE IN HONG".

ISSUE:

Whether the plastic carrier trays for the integrated circuits and the anti-static bags must be marked to indicate their own country of origin.

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 C.F.R. 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.

Section 134.1(d), Customs Regulations (19 C.F.R. ?134.1(d)) provides that "[the 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."

The last sentence of 19 U.S.C. 1304(b) provides that "usual containers in use as such at the time of importation shall in no case be required to be marked to show the country of their own origin." Accordingly, in determining whether the carrier trays and anti-static bags must be marked with their country of origin, we must determine whether they are to be used as usual containers under 19 U.S.C. 1304 and the implementing regulations of 19 CFR Part 134.

A "usual container" is defined in section 134.22(d)(1), Customs Regulations (19 C.F.R. ?134.22(d)(1)), as:

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.

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 C.F.R. ?134.22(d)(2), Customs Regulations, we held that the glass containers were excepted from being marked with their own country of origin.

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.

HRL 560487, dated September 23, 1997, concerned Canadian origin petri dishes, which were to serve as containers for various microorganisms and similar media. Applying the usual container definition of section 134.22(d)(1), Customs Regulations, we concluded that imported petri dishes of Canadian origin were containers in which the microorganisms will "ordinarily" reach their ultimate purchaser. This finding was based on the fact that there was no indication that the petri dishes were not included in the price of the microorganisms. Second, once the petri dishes were filled with the microorganisms, the dishes clearly do not impart the "essential character" of the article. Third, while the petri dishes appeared to be made of a hard plastic, because of the obvious nature of microorganisms which the petri dishes were designed to contain, once filled, they were not reusable. Thus, we did not find the petri dishes to have any "lasting value independent" from their use with the microorganisms. Accordingly, we found that the petri dishes were "usual containers" within the meaning of section 134.22(d)(1), Customs Regulations and that they were excepted from being marked individually with their country of origin.

In this case, in order to verify whether integrated circuits ordinarily reach their ultimate purchasers in the carrier trays put into the anti-static bags, we contacted the national import specialist who handles integrated circuits. The national import specialist confirmed that integrated circuits are commonly imported and delivered to manufacturers in plastic carrier trays, which are packaged in anti-static bags. Thus, we conclude that the integrated circuits will ordinarily reach their ultimate purchasers in the carrier trays and the anti-static bags. We also note that there is no indication that the carrier trays and the anti-static bags will not be included in the price of the integrated circuits. Moreover, the carrier trays and the anti-static bags do not impart the essential character to the integrated circuits. You state that the bags are routinely discarded after use and have no lasting value once the contents of the bag are removed. Although the carrier trays are made of a hard plastic, once the integrated circuits are removed, they are intended to be recycled. This is demonstrated by a legend on side of the carrier trays, advising whom to contact for recycling of the plastic trays. Accordingly, the carrier trays also have no lasting value apart from holding the integrated circuits. Therefore, we find that the carrier trays and the anti-static bags are "usual containers" within the meaning of 19 CFR 134.22(d)(1), and they are not required to be marked with their own country of origin under 19 U.S.C. 1304 (b).

You indicate that the carrier trays and the anti-static bags will be imported filled with integrated circuits. The filled anti-static bags will be heat sealed and will be packed in a cardboard box which is sealed with adhesive tape. The integrated circuits, carrier trays, and anti-static bags are not visible once they are placed in the cardboard box. In addition, you point out that the anti-static bag and the cardboard box are not normally opened prior to purchase.

Under 19 CFR 134.24(d)(2), holders of imported merchandise which are sold without normally being opened by the ultimate purchaser (e.g., individually wrapped soap bars or tennis balls in a vacuum sealed can), shall be marked to indicate the country of origin of their contents. In this instance, both the cardboard box and the anti-static bag have white labels securely affixed to them which show the country of origin of the integrated circuits. In accordance with 19 CFR 134.24(d)(2) the markings indicating the country of origin of the integrated circuits on anti-static bags and the cardboard boxes would be acceptable.

HOLDING:

Based upon the information provided, it is our opinion that the carrier trays and anti-static bags are usual containers within the meaning of 19 CFR 134.22(d), Customs Regulations and therefore are not required to be individually marked with their own country of origin. The sealed cardboard boxes in which the filled carrier trays and anti-static bags are packaged need only be marked to indicate the country of origin of the integrated circuits and do not have to be marked to show the country of origin of the carrier trays and the anti-static bags.

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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