MAR-2-05 CO:R:C:V 733675 EAB
Michael F. Mitri, Esquire
Donohue and Donohue
1177 Summer Street
Stamford, Connecticut 06905
Re: Country of origin marking requirements of disposable
containers imported to be filled. 19 CFR 134.24(c); 19 CFR
134.46; 715298; 716243; 731698
Dear Mr. Mitri:
This is in response to your two letters dated July 24, 1990,
in which you request a ruling on behalf of your client, Himont
U.S.A., Inc., addressing the country of origin marking of certain
packaging made either in India or Canada for your client.
FACTS:
Himont U.S.A., Inc., a domestic manufacturer and seller of
polypropylene resin, imports empty polypropylene packaging bags
from Canada or India and fills them in the U.S. with its product.
A sample bag has been submitted and visually examined. The bags
are classified under subheading 6305.31.0020-8 of the Harmonized
Tariff Schedule of the United States (HTSUS) as "sacks and bags,
of a kind used for the packing of goods, ... of ... polypropylene
strip." The bags are currently printed with various information
prior to the time they enter the U.S. Most prominent is the
company name, "Himont", which appears in large print on the front
center of each bag and in smaller print along the side. Beneath
the company name, on the front of each bag, appears the
designation "Pro-fax Polypropylene", the brand name of the resin
with which the bags will be filled, followed immediately by "Made
in U.S.A. by Himont U.S.A., Inc., Wilmington, DE". Adjacent to
this information are "net wt. 25 kg (55.1 lbs), gross wt. 25.1 kg
(55.4 lbs)" and Himont's disclaimer of express or implied
warranties "with respect to the use of this material". On the
side of the bags, next to the company name, again appears "Pro-
fax Polypropylene" followed by "Made in U.S.A. by Himont U.S.A.,
Inc." Finally, in a small box on the reverse side of each bag,
Himont has printed, in English and French, the origin of the
bag: "Bag Manufactured in Canada [or 'India']".
The bags are shipped empty to the U.S. in large cardboard
boxes, approximately 2,000 to 2,200 bags packed flat in each box.
The boxes are presently labelled on all sides with the company
name, the size of the bags and the number of bags in each box.
The boxes are stacked on pallets and arrive unopened in such
condition at Himont's plants in Lake Charles, Louisiana and
Bayport, Texas.
In the U.S., Himont machine-fills the empty bags with its
Pro-fax resin through a slot at the top of the bags and then
seals the bags. Himont sells the resin thus packaged to domestic
and foreign purchasers. Himont does not sell the bags empty, but
only as filled with its product. Once the purchasers have
unpacked the resin, the bags may not be resealed in the manner in
which they were originally sealed. The bags are not designed for
reuse and, to Himont's knowledge, are discarded after their
contents have been consumed.
You request a ruling that the subject bags are exempt from
individual country of origin marking, and that for all future
importations of such bags, the marking "Bag Manufactured in
(country of origin)", or any similar phrase, not be required.
ISSUES:
Are imported polypropylene bags used to package U.S. origin
polypropylene resin required to be individually marked with their
country of origin? Do the requirements of 19 CFR 134.36(b) and
19 CFR 134.46 apply to such bags?
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
purpose of the marking statute is set forth in United States v.
Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940), in which
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 a
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.
The disposition of this ruling request depends upon the
outcome of two related inquiries. First, are the polypropylene
bags disposable containers? Second, who is the ultimate
purchaser of the bags within the meaning of 19 U.S.C. 1304? Upon
consideration of the arguments and evidence presented, taking
into account the language and purposes of the statute and
regulations, and having reviewed our prior determinations, it is
our opinion that imported polypropylene bags are disposable
containers. Polypropylene bags imported to be filled by
domestic manufacturers of polypropylene resin are excepted from
individual country of origin marking pursuant to 19 CFR
134.24(c)(1). That section provides that persons or firms who
import disposable containers in order to fill them with products
they sell are the ultimate purchasers of the containers. Such
containers are excepted from country of origin marking pursuant
to 19 U.S.C. 1304(a)(3)(D), although at the time of importation
their outside wrappings or packaging must be marked with the
containers' country of origin.
Section 134.1(d), Customs Regulations (19 CFR 134.1(d)),
defines "ultimate purchaser" as generally the last person in the
U.S. who will receive the article in the form in which it was
imported. For example, Customs determined in HQ 729239 (January
3, 1986) 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. After packaging, the disposable
container becomes an integral part of the article with which it
is packaged, and is no longer a separate article of commerce. As
such, the packager is the last person who receives the disposable
container in the form in which it was imported.
Subpart C of 19 CFR Part 134, which provides for the country
of origin marking of containers, recognizes two broad categories
of containers. Section 134.23 specifies that reusable
containers, which must be individually marked with their country
of origin, are either: 1) those usual and ordinary containers
designed for or capable of reuse after their contents have been
consumed, such as heavy duty steel drums, tanks, and other
similar shipping, storage, or transportation containers; or 2)
containers which give the whole importation its essential
character, having lasting value or decorative use. Section
134.24 provides that disposable containers are the usual and
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. Disposable containers which are
packed and sold in multiple units may be marked to indicate their
country of origin on the outermost container which reaches the
ultimate purchaser.
A review of our previous rulings in this area leads to the
conclusion that polypropylene bags fall squarely within the
category of disposable containers. We have previously ruled
that plastic boxes with separate tops and bottoms used to store
U.S.- origin crayons were disposable containers. HQ 729943
(November 13, 1986). Similarly, in HQ 731318 (August 12, 1988)
we ruled that vinyl cases for birth control pills are disposable
containers within the meaning of 19 CFR 134.24. Finally, in HQ
729817 (November 13, 1986), we ruled that cardboard cartons to be
packed in the U.S. with bottles of wine cooler are disposable
containers.
In HQ 729476 (October 10, 1986), we determined that the
ultimate purchaser of a plastic shopping bag was the retail
customer of the store which provided it, since the bag was
durable and capable of reuse. We noted in that ruling that,
unlike the polypropylene bags, the plastic bag was not the
primary container for the merchandise sold by the store, and was
provided free of charge for the convenience of the store's
customers. We have consistently ruled that when an article is
provided as a gift or convenience, the donee or recipient is the
ultimate purchaser and the article must be individually marked
with its country of origin. See, 19 CFR 134.1(d)(4); C.S.D. 89-
89 (March 18, 1989); HQ 729800 (October 10, 1989). The
polypropylene bags, by contrast, are the primary containers for
the polypropylene resin, and it may reasonably be assumed that
the cost of the bags is included in the price of the
polypropylene resin. The bags are not provided merely as a
convenience to the purchaser of the polypropylene resin, but are
the usual and ordinary containers of it.
Also, we find that the polypropylene bags in this case are
not reusable and do not qualify as separate articles of commerce.
In construing the container provisions of subpart C of 19 CFR
Part 134, we are guided by the regulation's terms "usual",
"ordinary", "designed for" and "not designed for". These terms
indicate that we are to take into account the ordinary purpose
and capability for which the container is created. Absent
compelling reasons not shown here, we are directed by subpart C
of 19 CFR Part 134 to treat a polypropylene bag as a container.
It has not been demonstrated, for example, that there is a market
for polypropylene bags beyond manufacturers of polypropylene
resin. It has not been demonstrated that a purchaser would
refuse to buy polypropylene resin on the basis that the bag in
which it is sold is of foreign origin.
We note that General Rule of Interpretation (GRI) 5(b) of
the Harmonized Tariff Schedule of the United States (HTSUS)
provides that packing materials and packing containers entered
with the goods therein shall be classified with the goods if they
are of a kind normally used for packing the goods. This
provision does not apply when the packing materials or containers
are "clearly suitable for repetitive use". We take this rule in
this case as further indication that for Customs purposes a
polypropylene bag which is normally used to package polypropylene
resin is not, when it reaches the ultimate purchaser of the
polypropylene resin, an article of commerce separate from its
contents.
As is evident from the foregoing discussion, we are also
not persuaded that polypropylene bags are reusable containers.
It has not been demonstrated that, in the words of GRI 5(b),
HTSUS, the polypropylene bags are "clearly suitable for
repetitive use." Among the examples of disposable containers set
forth in 19 CFR 134.24 are "polyethylene bags and similar
containers". Our previous rulings cited above, that plastic
containers, pill boxes and cardboard cartons for wine coolers are
disposable containers excepted from individual country of origin
marking, are consistent with this approach.
Finally, 19 CFR 134.36(b) and 19 CFR 134.46 require that the
country of origin of the polypropylene bag appear in close
proximity to any words or symbols which indicate a country other
than the country of origin of the bag. The purpose of these
provisions is to prevent any misleading or possible deception of
ultimate purchasers as to the country of origin of imported
articles.
Section 134.36(b) provides that an exception from marking
shall not apply to any article or retail container bearing any
words, letters, names, or symbols described in section 134.46
which imply that an article was made or produced in a country
other than the country of origin. Facially, the sample bags
present this issue. The bag for polypropylene resin bears the
address of the resin manufacturer and the words "Made in U.S.A.".
The box for Sebago polypropylene resin bears no marking other
than the word "Sebago" which, arguably, is also the kind of
geographic name described in section 134.46. However, upon
consideration of our prior rulings on this point and examination
of the sample boxes, it is our opinion that the markings on the
boxes imply that the polypropylene resin to be placed in the
boxes and not the boxes themselves were made in the U.S.
Therefore, an exception from individual country of origin marking
for these polypropylene bags is not precluded by section
134.36(b).
In ruling 731388 (June 11, 1988), we considered whether
potato bags from Canada imported to pack U.S.-grown potatoes had
to be individually marked with their country of origin. The bags
were marked with the U.S. address of the bag manufacturer as well
as the U.S. address of the potato producer. We determined that
the presence of the U.S. address of the maker of the Canadian
bags tended to imply that the bags were of U.S. origin, and that
pursuant to section 134.36(b) the bags could not be excepted from
individual country of origin marking. We stated that had the
address of the produce company only appeared on the bags these
words would have implied only that the potatoes were of U.S.
origin. Similarly here, where the names and addresses of the
U.S. resin manufacturers are the only markings on the
polypropylene bags, there can be no reasonable inference that the
addresses suggest the origin of the box; they plainly refer to
the resin manufacturer. In HQ 729817 supra, we ruled that there
was no inconsistency between a U.S. marking on an imported
disposable container for a wine cooler and the U.S. origin of the
wine. Therefore, the disposable container did not have to be
marked with its own country of origin. Similarly, the purchaser
of polypropylene resin packaged in a disposable container would
fully expect the container to bear information concerning its
contents, and there is no possibility of misleading the ultimate
purchaser as to the country of origin of the polypropylene resin.
Accordingly, we find that section 134.36(b) does not apply to
preclude the granting of an exception from individual country of
origin marking for the polypropylene bags as disposable
containers pursuant to 19 CFR 134.24(c)(1). Since no country of
origin marking of the bag is required, the provisions of 19 CFR
134.46 do not apply.
HOLDING:
Polypropylene bags imported by Himont, U.S.A., Inc. to
package domestic origin polypropylene resin are disposable
containers excepted from individual country of origin marking
pursuant to 19 CFR 134.24(c)(1). 19 CFR 134.36(b) does not apply
to such polypropylene bags to preclude the application of the
exception or to require additional country of origin marking.
Sincerely,
John Durant, Director
Commercial Rulings Division