MAR-2 RR:CR:SM 560705 RSD
Donald Alford Weadon, Jr., Esq.
Weadon & Associates
1819 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
RE: Country of origin marking requirements for plastic carrier
trays and anti-static bags used for packaging integrated
circuits; usual containers; 19 CFR134.22(d)
Dear Mr. Weadon:
This is in response to your letter dated October 15, 1997,
on behalf of Toshiba America Electronic Components, Inc.
(hereinafter "Toshiba") requesting a ruling regarding the country
of origin marking requirements for carrier trays and anti-static
bags used in packaging integrated circuits. Enclosed with your
letter were samples of carrier trays containing integrated
circuits, an anti-static bag, and a cardboard box in which they
will be packaged.
FACTS:
Toshiba is an importer of integrated circuits assembled and
encapsulated abroad. The integrated circuits produced by Toshiba
may have various countries of origin, and each device will be
marked with its own country of origin. The devices are packaged
in plastic carrier trays, which hold up to sixty-six individual
devices. The carrier trays are supplied to Toshiba or its parent
corporation at the assembly point. The sample trays are made out
of heavy black plastic and have a separate compartment to place
each integrated circuit. Often, the trays are marked with their
own country of origin.
After the carrier trays are loaded with the finished and
tested devices, they are then packaged in an opaque heat-sealed
anti-static dry-pack bag, which protects the devices from
humidity and static electricity. A label identifying the
enclosed devices and supplying important information such as the
quantity, date code and the packing date is affixed to the anti-static bags. This dry pack label also indicates the country
origin of the devices. The dry pack label on the sample anti-static bag, is marked " MADE IN HONG KONG" in black letters
against the white background of the label. The anti-static bag
containing the carrier trays filled with the integrated circuits
is then packed and shipped inside a cardboard carton which is
sealed with adhesive tape.
A white adhesive label is placed on the sample cardboard carton.
The label gives important information regarding the circuits
including the country of origin marking "MADE IN HONG".
ISSUE:
Whether the plastic carrier trays for the integrated
circuits and the anti-static bags must be marked to indicate
their own country of origin.
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 C.F.R. 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.
Section 134.1(d), Customs Regulations (19 C.F.R. 134.1(d))
provides that "[the 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."
The last sentence of 19 U.S.C. 1304(b) provides that "usual
containers in use as such at the time of importation shall in no
case be required to be marked to show the country of their own
origin." Accordingly, in determining whether the carrier trays
and anti-static bags must be marked with their country of origin,
we must determine whether they are to be used as usual containers
under 19 U.S.C. 1304 and the implementing regulations of 19 CFR
Part 134.
A "usual container" is defined in section 134.22(d)(1),
Customs Regulations (19 C.F.R. 134.22(d)(1)), as:
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.
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 C.F.R. 134.22(d)(2), Customs Regulations, we held
that the glass containers were excepted from being marked with
their own country of origin.
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.
HRL 560487, dated September 23, 1997, concerned Canadian
origin petri dishes, which were to serve as containers for
various microorganisms and similar media. Applying the usual
container definition of section 134.22(d)(1), Customs
Regulations, we concluded that imported petri dishes of Canadian
origin were containers in which the microorganisms will
"ordinarily" reach their ultimate purchaser. This finding was
based on the fact that there was no indication that the petri
dishes were not included in the price of the microorganisms.
Second, once the petri dishes were filled with the
microorganisms, the dishes clearly do not impart the "essential
character" of the article. Third, while the petri dishes
appeared to be made of a hard plastic, because of the obvious
nature of microorganisms which the petri dishes were designed to
contain, once filled, they were not reusable. Thus, we did not
find the petri dishes to have any "lasting value independent"
from their use with the microorganisms. Accordingly, we found
that the petri dishes were "usual containers" within the meaning
of section 134.22(d)(1), Customs Regulations and that they were
excepted from being marked individually with their country of
origin.
In this case, in order to verify whether integrated circuits
ordinarily reach their ultimate purchasers in the carrier trays
put into the anti-static bags, we contacted the national import
specialist who handles integrated circuits. The national import
specialist confirmed that integrated circuits are commonly
imported and delivered to manufacturers in plastic carrier trays,
which are packaged in anti-static bags. Thus, we conclude that
the integrated circuits will ordinarily reach their ultimate
purchasers in the carrier trays and the anti-static bags. We
also note that there is no indication that the carrier trays and
the anti-static bags will not be included in the price of the
integrated circuits. Moreover, the carrier trays and the anti-static bags do not impart the essential character to the
integrated circuits. You state that the bags are routinely
discarded after use and have no lasting value once the contents
of the bag are removed. Although the carrier trays are made of a
hard plastic, once the integrated circuits are removed, they are
intended to be recycled. This is demonstrated by a legend on
side of the carrier trays, advising whom to contact for recycling
of the plastic trays. Accordingly, the carrier trays also have
no lasting value apart from holding the integrated circuits.
Therefore, we find that the carrier trays and the anti-static
bags are "usual containers" within the meaning of 19 CFR
134.22(d)(1), and they are not required to be marked with their
own country of origin under 19 U.S.C. 1304 (b).
You indicate that the carrier trays and the anti-static bags
will be imported filled with integrated circuits. The filled
anti-static bags will be heat sealed and will be packed in a
cardboard box which is sealed with adhesive tape. The integrated
circuits, carrier trays, and anti-static bags are not visible
once they are placed in the cardboard box. In addition, you
point out that the anti-static bag and the cardboard box are not
normally opened prior to purchase.
Under 19 CFR 134.24(d)(2), holders of imported merchandise
which are sold without normally being opened by the ultimate
purchaser (e.g., individually wrapped soap bars or tennis balls
in a vacuum sealed can), shall be marked to indicate the country
of origin of their contents. In this instance, both the
cardboard box and the anti-static bag have white labels securely
affixed to them which show the country of origin of the
integrated circuits. In accordance with 19 CFR 134.24(d)(2) the
markings indicating the country of origin of the integrated
circuits on anti-static bags and the cardboard boxes would be
acceptable.
HOLDING:
Based upon the information provided, it is our opinion that
the carrier trays and anti-static bags are usual containers
within the meaning of 19 CFR 134.22(d), Customs Regulations and
therefore are not required to be individually marked with their
own country of origin. The sealed cardboard boxes in which the
filled carrier trays and anti-static bags are packaged need only
be marked to indicate the country of origin of the integrated
circuits and do not have to be marked to show the country of
origin of the carrier trays and the anti-static bags.
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