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NY G83004




October 24, 2000

CLA-2-73:RR:NC:N1:113 G83004

CATEGORY: CLASSIFICATION

TARIFF NO.: 7310.21.0050

Mr. William B. Skinner
William B. Skinner, Inc.
247 Frelinghuysen Ave.
Newark, NJ 07114

RE: The tariff classification of a container from China

Dear Mr. Skinner:

In your letter dated October 3, 2000, on behalf of PIC Corporation, you requested a tariff classification ruling.

The sample you provided are empty containers designed to be used to hold ant poison. The containers are 2 inches in diameter and 5/8 of an inch in height [5.3 cm x 1.8 cm.] They are imported empty, the lids in the same shipment packed separately from the bottoms. They will be crimped closed after the importer has filled them. Although you state that they are made of tin, they are obviously made of some type of steel.

The applicable subheading for the containers will be 7310.21.0050, Harmonized Tariff Schedule of the United States (HTS), which provides for tanks, casks, drums, cans, boxes and similar containers, for any material of iron or steel, of a capacity not exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment, of a capacity of less than 50 liters, cans which are to be closed by soldering or crimping, other. The rate of duty will be free.

After importation, the importer intends to fill the containers with ant poison for sale at retail. You request information on the correct country-of-origin marking. The containers will be imported marked with directions for use and warnings concerning the contents and a US reference, “Orange, NJ 07050, USA,” on the back. The containers are disposable, since they must be discarded at the end of the life of the product. These containers are sold at retail with their contents and are otherwise not available on the retail market.

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 to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

Section 304 of the Tariff Act, as amended, (19 U.S.C. 1304) provides that all articles of foreign origin imported into the United States shall be legibly and conspicuously marked to indicate the English name of the country of origin to an ultimate purchaser in the United States. Section 134.24(c)(1) of the Customs Regulations provides that when disposable containers or holders are imported by persons or firms who fill or package them with products they sell, these persons or firms are the "ultimate purchasers" of the containers or holders.

In such a case, the containers may be excepted from individual marking under 19 U.S.C. 1304(a)(3)(D) as long as the outside wrappings or packages containing the containers are marked to indicate the country of origin of the containers.

However, because a U.S. reference appears on the imported containers when they are imported into the U.S., it is necessary to consider the necessity for additional marking. Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning. The purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of an article as to the actual origin of the imported good.

Customs has determined that the special requirements of 19 CFR 134.46 should not be applied automatically to all imported articles or their containers which bear a non-origin geographical reference. Customs has held that disposable containers imported empty to be filled by a domestic company may be excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3) (D) and 19 C.F.R. §134.24(c)(1), provided the address that appears on the container is clearly in reference to the contents of the container and not to the container itself. See HQ 731698, June 26, 1989 and HQ 716243, June 25, 1981. This is the case here. Since almost all the information on the back refers to the use of the poison, and not the container, it is clear that the address does not pertain to in any way the container. Therefore, we find 19 C.F.R. §134.36(b) is not applicable and that the requirements of 19 C.F.R. §134.46 do not apply.

Accordingly, the imported containers which are processed in the manner described above are not required to be individually marked with the country of origin and can be imported marked with a U.S. reference "Orange NJ 07050, USA" provided they are imported in containers properly marked with the country of origin and that the imported containers will reach the ultimate purchaser (U.S. manufacturer) in the original marked containers and the U.S. manufacturer will only use the imported containers as described above.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

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 James Smyth at 212-637-7008.

Sincerely,

Robert B. Swierupski
Director

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