MAR-02 RR:TC:SM 560487 JML
Mr. Richard P. Ferrin, Esq.
Mr. Douglas J. Heffner, Esq.
Rogers & Wells
607 Fourteenth St., N.W.
Washington, D.C. 20005-2018
RE: Eligibility of marking exceptions for petri dishes imported
from Canada; usual containers; NAFTA; 19 CFR 134.22.
Dear. Mr. Ferrin and Mr. Heffner:
This is in response to your letter of May 20, 1997, to Mr.
Joseph Wilson , Port Director of the Port of Buffalo, which was
forwarded to our office for consideration of the issues contained
therein. Specifically, you request a binding ruling regarding
the country of origin marking requirements for Canadian origin
petri dishes. You have submitted samples of the packaged petri
dishes for our review.
FACTS:
Your client, Kord Products Ltd. ("KPL"), is a Canadian
manufacturer of petri dishes. The petri dishes serve as
containers for various microorganisms and similar media. Once
they have been filled with their contents, the petri dishes are
not capable of reuse.
After manufacture, KPL wraps empty petri dishes in Canadian
origin hermetically sealed sleeves for export to the United
States ("U.S."). KPL's U.S. customer is PML Microbiologicals
("PML"). PML purchases the petri dishes, and fills them with
U.S. origin microorganisms. The microorganisms are then sold at
retail to various U.S. customers.
You contend that the imported petri dishes should be
excepted from the country of origin marking requirements of 19
U.S.C. 1304. First, you state that the petri dishes are "usual
containers" within the meaning of section 134.22, Customs
Regulations (19 CFR 134.22) and are therefore excepted from
individual marking. Additionally, you state that the petri
dishes are "disposable containers" under section 134.24, Customs
Regulations (19 CFR 134.24) which are similarly excepted from
country of origin marking. Alternatively, you contend that the
U.S. customer which fills the petri dishes with their contents is
the "ultimate purchaser" of the articles which excepts them from
the country of origin marking.
ISSUE:
Whether the imported Canadian origin petri dishes are
excepted from the country of origin marking requirements of 19
U.S.C. 1304.
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 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 CFR 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. (Emphasis added).
Section 134.1(g), Customs 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. Since we were not provided with
information concerning the production of the petri dishes, we
will assume for purposes of this ruling that their country of
origin is Canada and that consequently they are goods of a NAFTA
country. You contend that the petri dishes are usual containers
of microorganisms which except them from being individually
marked with their country of origin.
Section 134.1(d), Customs Regulations (19 CFR 134.1(d))
provides that "[t]he 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."
A usual container is defined in section 134.22(d)(1),
Customs 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), Customs 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).
Furthermore, section 134.24(c)(1), Customs Regulations (19
CFR 134.24(c)(1)), states that when usual containers which are
goods of a NAFTA country are imported by persons or firms who
fill or package them with various products they sell, those
persons or firms are considered the ultimate purchasers of the
containers, and they may be excepted from individual marking.
The outside wrappings or packages containing the containers must
be marked to clearly indicate the country of origin of the
containers, however.
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 CFR 134.22(d)(2), Customs Regulations, we held
that the glass containers were excepted from being marked with
their own country of origin. However, we also pointed out that
pursuant to section 134.24(c)(1), Customs Regulations, the
outermost containers in which the glass containers were imported
and reached the ultimate purchasers in the U.S., were required to
be marked with the country of origin (of the glass containers),
Mexico. 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. However, under section 134.24(c)(1), Customs
Regulations, the outermost containers in which the cosmetic
containers were imported and reached the ultimate purchaser in
the U.S. (the company which filled the cosmetic containers) were
required to be marked with the country of origin (of the cosmetic
containers).
In light of the above rulings, applying the usual container
definition of section 134.22(d)(1), Customs Regulations, to this
case leads to the conclusion that the petri dishes are containers
in which the microorganisms will "ordinarily" reach their
ultimate purchaser. There is no indication that the petri dishes
are not included in the price of the microorganisms. Second,
once the petri dishes are filled with the microorganisms, the
dishes clearly do not impart the "essential character" of the
article. Third, while the petri dishes do appear to be made of a
hard plastic, because of the obvious nature of microorganisms
which the petri dishes are designed to contain, once filled, they
are not reusable. Thus, we do not find them to have any "lasting
value independent" from their use with the microorganisms.
Accordingly, we find that the petri dishes are "usual containers"
within the meaning of section 134.22(d)(1), Customs Regulations.
As such, they are excepted from being marked individually with
their country of origin, although the outermost packaging
containing the petri dishes must be marked to indicate the
country of origin (of the petri dishes). However, given that the
petri dishes are imported empty, pursuant to section
134.22(d)(2), Customs Regulations, the importer must be able to
provide satisfactory evidence to Customs at the time of
importation to establish that the petri dishes will only be used
as usual containers.
As we have determined that the Canadian origin petri dishes
are excepted from the country of origin marking requirements on
the basis of being usual containers of a NAFTA country pursuant
to section 134.22(d)(1), Customs Regulations, we do not reach the
merits of your other arguments.
HOLDING:
Based upon the information provided, it is our opinion that
the petri dishes are usual containers within the meaning of 19
CFR 134.22(d)(1), Customs Regulations, and therefore are not
required to be individually marked with their own country of
origin, provided the importer is able to provide satisfactory
evidence to Customs at the time of importation that the petri
dishes will be used only as usual containers for microorganisms.
The outer wrapping containing the petri dishes must be marked
with the country of origin of the petri dishes.
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