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HQ H007770




May 21, 2007

CLA-2 OT:RR:CTF:TCM H007770 HMC

CATEGORY: MARKING

Matthew T. McGrath
Cortney O’Toole Morgan
Barnes, Richardson & Colburn
1420 New York Avenue, NW, 7th Floor
Washington, DC 20005

RE: Country of Origin Marking of Polypropylene Woven Bags

Dear Mr. McGrath and Ms. Morgan:

This is in response to your letter, dated March 2, 2007, on behalf of Coating Excellence International LLC (hereinafter referred to as “CEI”), requesting a ruling concerning the country of origin marking for pre-printed polypropylene woven bags manufactured in China and imported into the United States empty for sale to retailers of bulk commodities.

FACTS:

You describe the merchandise in your ruling request as polypropylene bags composed of an inner layer of woven mesh, a layer of adhesive, and an outer layer of polypropylene film that is pre-printed with high-quality graphics. The bags have the capacity to hold between 15 to 50 pounds. The bags are imported by CEI in bulk shipments of 3,000 to 5,000 bags bound to a pallet. Following their importation, the bags will be shipped directly to CEI’s customers who will fill and seal the bags with dry commodities of U.S origin, such as grain, seed, fertilizer and dog food. The filled bags will then be sold in retail stores.

A sample submitted for our examination is a bag approximately 18.5” x 32” with printed graphics depicting pictures and information for the bulk commodity the bag is meant to hold. It names the bulk commodity (oil sun flower for bird feeding), shows a picture of the commodity and states the net weight (25 lbs) the bag is designed to hold, as shown in the following pictures of the item:

The bag’s top has an “E-Z open” pull tape that when pulled may be completely removed from the bag to let its contents out. The reverse side of the bag shows information on the bag’s contents, including the ingredients and composition analysis, as well as a bar code. Towards the bottom of the bag, there is a certification for the bag by Mid-America Packaging and its location in Twinsburg, Ohio.

You contend that the bags are durable in construction and capable of having multiple uses and should be individually marked with the reference “Bag made in China” to reflect their country of origin. To support your contention you point out that CEI recently obtained New York Ruling Letter (“NY”) N005192, dated January 29, 2007, which classified the subject bags as textile articles under subheading 6305.32.0010, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “sacks and bags, of a kind used for the packing of goods: of man-made textile materials: flexible intermediate bulk containers, weighing one kilogram or more.” You claim that articles classifiable under this subheading are of durable and lasting construction that allows for the transport and long-term storage of various commodities.

ISSUES:

Whether the pre-printed polypropylene woven bag, as shown in the sample provided, is a reusable container that must be individually marked to refer to its country of origin or whether it is a disposable container exempt from marking?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States 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. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940).

Part 134 of the Customs and Border Protection (CBP) Regulations implement the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Where the articles, as in this case, constitute containers, Subpart C to Part 134 applies, which provides for the country of origin marking requirements for containers. Section 134.22(b) of this subpart (19 CFR 134.22(b)) states, in part, that

Containers or holders for imported merchandise which are subject to treatment as imported articles under the [HTSUS] (19 U.S.C. 1202), shall be marked to indicate clearly the country of their own origin in addition to any marking which may be required to show the country of origin of their contents; .”

Section 134.22(e)(3) states that containers or holders of imported articles are not required to be marked if the container or holder is within the exception set forth in section 134.24(c). Section 134.24 provides for the marking requirements of disposable containers. Thus, because the application of the country of origin requirements to containers, depends, in part, on whether the containers are reusable or disposable in nature, we must determine whether the subject bags are disposable containers subject to the exceptions provided for at 19 CFR 134.24. If the containers are not disposable containers, but instead are containers or holders designed for or capable of reuse, the provisions of 19 CFR 134.23 would apply.

Section 134.24(a) defines disposable containers as “the usual ordinary types of containers or holders, including cans, bottles, paper or polyethylene bags, paperboard boxes, and similar containers or holders which are ordinarily discarded after the contents have been consumed.” You contend that the subject bags are not disposable in nature. You claim that the bags are of multi-layered, heavy construction and designed to withhold large quantities of bulk materials during transport, storage, sale to and use by retail consumers. You further claim that some of the bags may be resealed after opening through a reclosure mechanism inserted at the time of manufacture and can be used as a means of storing unused portions of the contents for an extended period. You contend that while most bags do not contain a reclosure device, nonetheless the bags are durable and can be used for long-term storage of partially consumed contents or reused to store other bulk items after the original contents have been consumed or as garbage or waist containers. To support your claims, you cite NY H81314, dated June 20, 2001, and HQ 734190, dated November 18, 1991. You also cite to NY N005192, dated January 29, 2007, which CEI recently received that classified a flexible container bag of mesh woven polypropylene, measuring 93” x 93” x 132.”

CBP has considered the country of origin marking of polypropylene bags in Headquarter Ruling Letters (“HQs”) 731088, dated June 3, 1988, and 734932, dated January 3, 1994. In HQ 731088, CBP determined that a polypropylene mesh bag, imported empty in bales for sale to packers of perishable fresh foods was a disposable container and that the packers were the ultimate purchasers of the bag. In HQ 734932, CBP similarly found that polypropylene bags imported and sold in full bale quantities were of the disposable type. The bags in that case were filled with commodities such as onions, beans and flour of U.S. origin after their importation into the United States. In HQ 734932, CBP elaborated that containers may be imported with the pre-printed country of origin marking for the product intended to fill the container so long as it is clear that the pre-printed marking refers to the contents and not the container.

In this case, the sample submitted does not show any features that would make the subject bags the type designed for and capable of reuse. The sample is a relatively small container of bulk commodity, designed to only hold up to 25 pounds of bird feed. The top part is made of a removable tape that when pulled off does not allow the bag to be resealed. Thus, it is our view that the subject bags are of the usual ordinary type that will ordinarily be discarded after the contents are consumed.

We disagree with your contention that the bags are not disposable in nature. Although we do not believe that the subject bags are of sturdy construction, we note that sturdy containers have been held to be disposable containers. In HQ 733274, dated June 19, 1990, CBP held that cigar boxes made of wood, sturdy in construction and having a smooth finish were considered disposable containers. CBP found that the cigar boxes were not the type of reusable containers provided for in 19 CFR § 134.23. We explained that the types of reusable containers described in section 134.23 fall into two classes: articles such as steel drums, tanks, and other storage or transportation containers; and, containers or holders which have a lasting value or decorative use, such as decorative mustard jars, shaving mugs and cologne bottles. In that case, CBP found that that the cigar boxes, by contrast, were clearly designed for the single purpose of containing and preserving cigars, and not either for multiple uses with the same article or for uses after the depletion of its contents. Any other use was secondary and fugitive, and did not change the status of the containers as disposable cigar boxes. See 733274, citing HQ 732823, dated January 19, 1990. Similarly, in this case, we find that the subject bags are designed for the single purpose of containing the particular commodity the bags are meant to hold and that any other use the subject pre-printed polypropylene bags may be subjected to is secondary and fugitive and does not change their status as disposable containers.

The cases cited in support of your contention that the subject bags are not the disposable type are distinguishable. We note that the merchandise involved in HQ 734190 was a reinforced, zippered vinyl bag used to store pillows and blankets. All the features of the vinyl bag, such as the reinforced edges, the zipper and the plastic used to make the bag, supported its continued reuse every season. In NY H81314, CBP considered the country of origin marking of a bag used for the packaging of soccer goalkeeper gloves. CBP held that the bag had to be individually marked with its country of origin because the bag’s features, such as edges stitched and reinforced with piping and flaps with snaps, allowed for its repetitive use each season and the long-term storage of soccer goalkeeper gloves.

The subject bags do not have the long-term storage and repetitive use features of the bags considered in HQ 734190 and NY H81314. The subject bags do not have zippers, snaps or reinforced stitches found on the bags considered in those cases. The features of the bags in this case, such as the “E-Z open” pull tape and specific labeling information, only permit the limited use of transporting and temporarily holding the bulk commodity that the bags are designed to contain. The subject bags are thus temporary containers that, once opened and consumed, would not ordinarily be reused for the commodity it was meant to hold. As stated above, any other use the bags in this case are subjected to is fugitive and do not change their status as disposable containers.

The subject bag is also unlike the examples of containers or holders designed for or capable of reuse cited in 19 CFR 134.23(a) (e.g., heavy duty steel drums, tanks and other similar shipping, storage, transportation containers or holders), or the examples of containers or holders which have a lasting value or decorative use, cited in 19 CFR 134.23(b) (e.g., decorative mustard jars, shaving mugs and cologne bottles).

We further note that NY N005192, a classification ruling, does not appear to cover the same merchandise being considered in this case. Also, inasmuch as that ruling did not consider the country of origin marking for the subject merchandise, it is inapplicable to this case. The classification of bags under subheading 6305.32.0010, HTSUS, in that case should not impact on the country of origin marking determination in this case. We note that the Explanatory Note (“EN”) to subheading 6305.32 states that “[f]lexible intermediate bulk containers are usually made of polypropylene or polyethylene woven fabrics and generally have a capacity from 250 kg to 3,000 kg. They may have lifting straps at the four top corners and may be fitted with openings at the top and bottom to facilitate loading and unloading. They are generally used for packing, storage, transport and handling of dry, flowable materials.” The pre-printed polypropylene bags in this case are only capable of holding 15 to 50 pounds (6.8 kg to 22.7 kg) and do not appear to be classifiable under subheading 6305.32, HTSUS.

Section 134.24(b) states that:

Disposable containers or holders imported for distribution or sale are subject to treatment as imported articles in accordance with the [HTSUS](19 U.S.C. 1202), and shall be marked to indicate clearly the country of their own origin. However, when the containers are packed and sold in multiple units (dozens, gross, etc.), this requirement ordinarily may be met by marking the outermost container which reaches the ultimate purchaser.

In this case, the ultimate purchasers are CEI’s customers, who buy the disposable bags and use them to package their goods. See HQ 732823, dated January 19, 1990, citing HQ 729239, dated January 3, 1986, where CBP determined that the ultimate purchaser of disposable bags is the company that buys and uses them to package its goods, even if the company is not the importer. You indicate that the pre-printed polypropylene bags will be imported by CEI in bulk shipments of 3,000 to 5,000 bags bound to a pallet. You further indicate that following their importation, the bags will be shipped directly to CEI’s customers who will fill and seal the bags with dry commodities of U.S. origin. Inasmuch as the subject bags are imported with an outermost container and reaches CEI’s customers intact without being repackaged or otherwise manipulated, in accordance with 19 CFR 134.24(b), only the outermost container that reaches CEI’s customers needs marking to reflect the country of origin of the disposable pre-printed polypropylene bags.

Nevertheless, we note that when a foreign import is marked with a domestic U.S address, the special marking rules of 19 CFR 134.46 are triggered. Section 134.46 states that:

[i]n any case 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 location 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 appear 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 of the article, 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. (Emphasis added).

Treasury Decision (“T.D.”) 97-72 (62 Fed. Reg. 44211, Aug. 20, 1997), which amended 19 CFR 134.46 as cited above, states, in part, that CBP has “the discretion to determine on a case-by-case basis whether a mark ‘may mislead or deceive an ultimate purchaser as to the actual country of origin.’” In determining whether 19 CFR 134.46 is triggered, the issue is whether the non-origin reference (by itself) is likely to mislead or deceive the ultimate purchaser. In this case, the reference to the U.S. locality, “Twinsburg, Ohio” triggers the requirements of 19 CFR 134.46 because it has the potential to mislead the ultimate purchaser.

The certification statement in the back of the subject bag includes the words “Mid-America Packaging Twinsburg, Ohio” in large type. The top of the certification is headed by the words “Freight Shipping Bag,” also in large type. It is our view that the reference to a U.S. locality in the context in which it is printed may cause confusion to the ultimate purchaser. Inasmuch as the words in the bag’s certification refer to the bag’s manufacturing, the reference relates to the bag’s production and the subject bag must be individually marked with its country of origin. In order to satisfy the close proximity requirement articulated in 19 CFR 134.46, the country of origin marking must appear on the same side or surface in which the name or locality other than the actual country of origin appears and in close proximity to such words and in at least a comparable size. “Bag Made in” or other words of similar meaning must precede the name of the country of origin.

HOLDING:

Based on the information provided, we find that the pre-printed polypropylene woven bags manufactured in China and imported into the United States empty for sale to retailers of bulk commodities are disposable containers. We further find that the reference to a U.S. locality on the back of the subject bags may mislead the ultimate purchaser and the special marking requirements of 19 CFR 134.46 are triggered. Accordingly, the bags must be individually marked to reflect China as their country of origin, in accordance with 19 CFR § 134.46. This ruling is limited to the merchandise and facts provided in your ruling request of March 2, 2007.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Gail A. Hamill, Chief

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