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NY K88363




August 11, 2004

MAR-2 RR:NC:SP:221 K88363

CATEGORY: MARKING

Mr. Gern F. Scott
PBB Global Logistics
670 Young Street
Tonawanda, NY 14150

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED PAILS AND LIDS; ARTICLE 509

Dear Mr. Scott:

This is in response to your letter dated July 28, 2004, on behalf of Ropak Canada Limited, requesting a ruling on whether plastic containers, imported empty, are required to be marked with their country of origin if the containers "are goods of a NAFTA country" and are only to be used as usual containers. A sample was submitted with your letter for review.

The sample is a plastic pail with lid. The pail is the type used for packaging of products such as cat litter or joint compound. You describe two scenarios in which the pails may be imported. In one scenario both the pails and the lids will be manufactured in Canada and imported into the United States to be sold to customers who will fill the pails with the various consumer products. In the other scenario only the lids will be manufactured in Canada and imported into the United States where they will be sold to U.S. customers along with the U.S. manufactured pails. The U.S. customers will fill them with various consumer products. In no case will the pails or lids be sold directly to end users. The end users will always receive the pails with attached lids filled with a consumer product. The empty pails with lids, or the lids alone, will be imported into the United States in cartons that are marked with the country of origin.

The applicable subheading for the empty plastic pails, whether imported with or without lids, will be 3923.90.00, Harmonized Tariff Schedule of the United States (HTS), which provides for articles for the conveyance or packing of goods, of plasticsother. The general rate of duty will be 3 percent ad valorem.

The applicable subheading for any plastic lids imported without pails will be 3923.50.0000, HTS, which provides for stoppers, lids, caps and other closures, of plastics. The general rate of duty will be 5.3 percent ad valorem.

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 containers are only to be used 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 the imported plastic pails are considered to be "usual containers" as defined in section 134.22(d)(1) of the regulations.

The only issue remaining 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).

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 plastic pails and lids with their own country of origin is not required.

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 Joan Mazzola at 646-733-3023.

Sincerely,

Robert B. Swierupski
Director,

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