MAR-2-05 CO:R:C:V 733106 KG
Mr. Joe Laird
Pacific Resources, Inc.
175 W. Jackson Boulevard
Suite 1800
Chicago, Illinois 60604
RE: Country of origin marking of imported 35mm film
Dear Mr. Laird:
This is in response to your letter of February 2, 1990,
requesting a country of origin ruling regarding imported 35mm
film, metal and plastic film cassette vials.
FACTS:
You plan to import 35mm film in 100 meter long rolled
pancakes from the Peoples Republic of China. The film will be
cut, rolled and placed in metal cassettes in the U.S.
The metal for the cassettes will be imported from Japan and
cut, rolled and made into metal cassettes in the U.S.
The plastic film canisters in which the filled metal film
cassettes will be placed will be imported from Korea.
ISSUE:
What is the proper country of origin marking of the imported
35mm film, metal and plastic film canisters pursuant to section
304 of the Tariff Act of 1930, as amended?
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 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. The Court of
International Trade stated in Koru North America v. United
States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In
ascertaining what constitutes the country of origin under the
marking statute, a court must look at the sense in which the term
is used in the statute, giving reference to the purpose of the
particular legislation involved. The purpose of the marking
statute is outlined in United States v. Friedlaender & Co., 27
CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that:
"Congress intended 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."
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.35, Customs Regulations (19 CFR
134.35), provides that articles used in the U.S. in manufacture
which results in articles having a name, character or use
differing from that of the imported articles will be within the
principle of the decision in the case of United States v. Gibson-
Thomsen Co., Inc., 27 CCPA 267 (1940). Under this principle, the
manufacturer or processor in the U.S. who converts or combines
the imported article into the different article will be
considered the ultimate purchaser of the imported article within
the contemplation of section 304(a), Tariff Act of 1930, as
amended (19 U.S.C. 1304(a)), and the article shall be excepted
from marking. If the article is substantially transformed in the
U.S., only the outermost container of the imported article shall
be marked.
A substantial transformation occurs when articles lose their
identity and become new articles having a new name, character or
use. United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 at 270
(1940), National Juice Products Association v. United States, 10
CIT 48, 628 F.Supp. 978 (CIT 1986), Koru North America v. United
States, 12 CIT ___, 701 F.Supp. 229 (CIT 1988).
In ORR Ruling 217-69 (March 28, 1969), Customs ruled that
a U.S.-made film base was substantially transformed when it was
coated with photographic emulsion in Italy. The resulting x-ray
film was considered a product of Italy for marking purposes. The
rolls of x-ray film were excepted from marking so long as the
container in which the rolls were packaged were marked to
indicate that Italy was the country of origin. In addition,
Customs recently held in HQ 732842 (February 23, 1990), that bulk
photographic film imported from Japan and cut to length, inserted
into cartridges and packaged in sealed boxes in the U.S. was not
substantially transformed in the U.S. Customs required that the
sealed boxes be marked with the country of origin of the imported
film. You propose to do the same processing in the U.S. which
was held in HQ 732842 not to be a substantial transformation.
Based upon the conclusion reached in HQ 732842 in analyzing
identical processing, we conclude that the imported 35mm film is
not substantially transformed in the U.S.
The second issue raised concerns the marking of the retail
film cartridges. This issue was also addressed in ORR 217-69 and
HQ 732842; Customs ruled in both cases that the rolls of film
were excepted from marking and only the container in which the
rolls are packaged should be marked with the country of origin.
Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d),
Customs Regulations (19 CFR 134.32(d)), Customs excepts from
individual marking requirements imported articles for which the
marking of the containers will reasonably indicate the origin of
the articles. As discussed above, the purpose of the marking
statute is to allow ultimate purchasers to make informed buying
choices. The film cartridge is only sold to ultimate purchasers
in a box. As long as the box is properly marked with the
country of origin of the film, the film cartridge itself and the
plastic holders that are inside the paper box are excepted from
marking under 19 CFR 134.32(d). However, since the film is not
imported in the paper boxes, but is repackaged after importation,
the availability of this exception is at the discretion of the
district director of Customs where the entry is made. Pursuant
to 19 CFR 134.34, an exception may be authorized, in the
discretion of the district director, for the imported film
because it will be repacked after release from Customs custody
if: the containers in which the articles are repacked will
indicate the origin of the film to an ultimate purchaser in the
U.S. and the importer arranges for supervision of the marking of
the containers by Customs officers at the importer's expense or
secures such verification as may be necessary, by certification
and the submission of a sample or otherwise, of the marking prior
to the liquidation of the entry.
You indicated in your letter that the metal cassettes are
cut, rolled and made in the U.S. from metal imported from Japan.
Imported metal cut, rolled and made into metal cassettes would
create a new and different article having a new name, character
and use. The metal, which is a raw product, is made into a
finished article. Imported metal could be made into a number of
objects with a variety of uses. In contrast, the finished
article has a new name, a film cassette, a new shape, thickness
and a very particular use. Therefore, the imported metal is
substantially transformed in the U.S. into metal cassettes.
Pursuant to 19 CFR 134.35, only the outermost container in which
the imported metal is entered into the U.S. must be marked with
the country of origin of the metal.
The question of how to mark the plastic film canisters
depends on whether they are considered disposable containers or
not. Section 134.24(c)(1), Customs Regulations (19 CFR
134.24(c)(1)), provides that when disposable containers or
holders are imported by persons or firms who fill or package them
with various products which they sell, these persons or firms are
the ultimate purchasers of these containers or holders and they
may be excepted from individual marking pursuant to 19 U.S.C.
1304(a)(3)(D). The outside wrappings or packages containing the
containers shall be clearly marked to indicate the country of
origin.
Custom recently held in HQ 732823 (January 19, 1990), that
imported cardboard shoe boxes are disposable containers and in HQ
731863 (February 14, 1990), that plastic cosmetic compacts are
disposable containers. In this case, the film canisters are the
primary container for 35mm film whose purpose is to insure that
the film canisters are stored in a light tight environment prior
to being loaded into the camera. Further, once the film is shot,
the film is placed back in the plastic container to be sent out
for development and processing. Given these facts, it is
apparent that the film canisters are specifically designed to be
filled with sealed film cassettes and that once the film is
processed, the plastic container is intended to be discarded.
Therefore, the plastic film canisters are disposable containers
imported empty to be filled and therefore, pursuant to 19 U.S.C.
1304(a)(3)(D) and 19 CFR 134.24(c)(1), only the outside wrappings
or packaging containing the plastic film canisters are required
to be clearly marked to indicate the country of origin of the
plastic film canisters.
HOLDING:
The imported bulk 35mm film is not substantially transformed
in the U.S. However, pursuant to 19 CFR 134.32(d), the film
itself may be excepted from marking in the discretion of the
district director pursuant to 19 CFR 134.34 in which case only
the outer box in which the film reaches the ultimate purchaser
must be marked with the country of origin of the film.
The imported metal is substantially transformed in the U.S.
into metal cassettes. Therefore, pursuant to 19 CFR 134.35,
only the outermost container in which the metal is imported must
be marked to indicate the country of origin of the metal.
The imported plastic film canisters are disposable
containers and are excepted from individual marking pursuant to
19 CFR 134.24(c)(1). The outermost wrapping or packaging
containing the plastic film canisters must be marked to indicate
the country of origin of the canisters.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch