CLA-2 R:C:S 558985 MLR
Scott E. Rosenow, Esq.
S. Richard Shostak, Esq.
Stein, Shostak, Shostak & O'Hara
1620 L Street
Suite 807
Washington, D.C. 20036-5605
RE: NAFTA; Article 509; sunglass pouches; usual containers; 19
CFR 134.22(d); country of origin marking
Dear Mr. Rosenow and Mr. Shostak:
This is in reference to your letter of January 7, 1995,
requesting a ruling on behalf of your client, Brandon
International, concerning the country of origin marking
requirements for certain pouches imported into the U.S. from
Mexico.
FACTS:
A sample of the good at issue was sent to us by Customs in
San Diego. The sample pouch has a drawstring and measures 3 « by
7 inches. It also has a tag containing the phrase "Genuine
Oakley Software" on one side, and "Plutonite lens should be
cleaned with this Sunglass Bag" on the other side. You state
that the pouches are imported from Mexico, and after importation,
are combined with Oakley sunglasses. The sample obtained by us
indicates that the pouch, the "MFrame" style of Oakley
sunglasses, and a brochure are placed inside a clear box which
contains the marking "Made in the USA." The brochure states the
following: "sunglasses come with a specially woven, electro-static Microclear Bag for cleaning and storage. Using it will
help maintain the superior optical quality of Oakley's pure
Plutonite lenses." Another style of Oakley sunglasses ("Frog
Skin") was submitted by you at a meeting at the Office of
Regulations and Rulings on May 9, 1995. The Frog Skin sunglasses
are placed inside the pouch, and are together sold in a black
box. You state, in either case, that the pouches are always sold
with the sunglasses.
You claim that the pouches are "usual containers" and,
therefore, should not be required to be marked with their own
country of origin, pursuant to 19 CFR 134.22(d)(2).
ISSUE:
Whether the pouches are "usual containers" within the
meaning of 19 CFR 134.22(d)(1), and, therefore, are not required
to be marked with their own country of origin.
LAW AND ANALYSIS:
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. Part 134, Customs Regulations (19 CFR Part 134)
implements the country of origin marking requirements and
exceptions of 19 U.S.C. 1304.
Section 134.1(g), interim 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 set out at 19 CFR Part 102, interim
Regulations. Since we were not provided with information
concerning the production of the pouches, we will assume for
purposes of this ruling that the country of origin of the pouches
is Mexico and that consequently they are goods of a NAFTA
country. In this case, you claim that the pouches are imported
as usual containers, since they are combined with Oakley
sunglasses and are a type of container in which Oakley sunglasses
ordinarily reach the ultimate purchaser.
A usual container is defined in section 134.22(d)(1),
interim 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), interim 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).
In Headquarters Ruling Letter (HRL) 735548 dated February
14, 1995, Customs determined that Chinese-origin plastic bags
made of clear thick plastic, printed with the words "Mega Block,"
and imported filled with Canadian-origin toy building blocks were
usual containers, as defined by 19 CFR 134.22(d)(1) and,
therefore, were not required to be marked with their own country
of origin pursuant to 19 U.S.C. 1304(b).
In HRL 735504 dated January 6, 1995, a pair of sunglasses,
an eyeglass cord holder, a cloth pouch with a drawstring closure
measuring approximately 7 inches by 3 3/4 inches, and a wooden
box were imported from New Zealand. The sunglasses and eyeglass
cord holder were placed in the pouch, which were then placed in
the wooden box. Customs found that the cloth pouch was not
designed for repetitive use, and was considered a disposable
container. Therefore, the pouch did not have to be marked with
its own country of origin pursuant 19 CFR 134.24(d). While this
marking determination was made because the pouch was disposable,
which is not relevant under the new NAFTA requirements, before a
determination concerning its reuse became important, the pouch
first had to be considered a container.
Applying the usual container definition of 19 CFR
134.22(d)(1) to this case, we find that although Oakley states
that some of its styles of sunglasses are placed inside the
pouches at the time of sale, whereas other styles are not, the
pouches are containers in which the sunglasses will "ordinarily"
reach its ultimate purchaser. There is no evidence that the
pouches are not included in the price of the sunglasses. Second,
although the pouches are imported without the sunglasses, once
they are combined with the sunglasses the "essential character"
of the merchandise is imparted by the sunglasses. Third, while
the pouches are made of special material to clean the lenses of
the sunglasses, we do not find this to be either a "significant
use" or a "lasting value independent" from their use with the
sunglasses. Accordingly, we find that the pouches are "usual
containers" within the meaning of 19 CFR 134.22(d)(1).
However, given that the pouches are imported separately, and
are not specially shaped or fitted to necessarily indicate that
they are sunglass pouches other than by the tag sewn onto the
pouch, pursuant to 19 CFR 134.22(d)(2), satisfactory evidence
must be presented to Customs at the time of importation to
establish that the pouches will only be used as usual containers.
Although 19 CFR 134.22(d)(2) states, parenthetically, that the
container "is to be filled," which the pouches will be in the
case of the Frog Skin style of sunglasses, but not the Mframe
style, an affidavit certifying that the pouches will only be sold
with Oakley sunglasses should satisfy the requirement that the
sunglasses will ordinarily reach the ultimate purchaser in a
pouch. (Emphasis added.)
HOLDING:
Based upon the information provided, it is our opinion that
the pouches are usual containers within the meaning of 19 CFR
134.22(d)(1), and, therefore are not required to be marked with
their own country of origin, provided satisfactory evidence is
presented to Customs at the time of importation that the pouches
will be used only as usual containers for Oakley sunglasses.
Sincerely,
John Durant, Director
Commercial Rulings Division