Mar-2-05 CO:R:C:S 735548 AT
William J. LeClair
Trans-Border Customs Services, Inc.
One Trans-Border Drive
P.O. Box 800
Champlain, NY 12919
RE: Country of origin marking requirements for plastic bags
filled and imported with toy blocks from Canada; usual
containers; container marking; 19 U.S.C. 1304(b); section
134.22(d)(2) of the interim regulations;
Dear Sir:
This is in response to your letter dated March 7, 1994, on
behalf of Ritvik, concerning the country of origin marking
requirements for plastic bags filled and imported with toy blocks
from Canada. A sample of the plastic bag and product brochure
was submitted with your letter. We regret the delay in
responding.
FACTS:
Rivtik imports toy building blocks into the U.S. from
Canada. The toy blocks are imported in a plastic bag that is
manufactured in China. The bag is made of clear thick plastic
and has the words "Mega Blocks" printed on the front of the bag
in large red lettering. An adhesive label is affixed to the
bottom of the bag printed with a warning "This bag is not a Toy.
To avoid danger and suffocation, keep this bag way from babies
and children" in various languages, including English. No other
markings appear on the plastic bag. The bag is to be used by the
ultimate purchaser of the toy blocks for storage purposes when
the blocks are not being used.
You state that the plastic bag should be excepted from being
marked with its origin--China--because it is a usual container,
as defined in section 134.22(d) of the interim regulations, being
imported from a NAFTA country. ISSUE:
What are the country of origin marking requirements for the
plastic bags imported into the U.S. in the manner described
above.?
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.
The country of origin marking requirements for a "good of a
NAFTA country" are also determined in accordance with Annex 311
of the North American Free Trade Agreement ("NAFTA"), as
implemented by section 207 of the North American Free Trade
Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057)
(December 8, 1993) and the interim amendments to the Customs
Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3,
1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and
T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim
amendments took effect on January 1, 1994, to coincide with the
effective date of the NAFTA. The Marking Rules used for
determining whether a good is a good of a NAFTA country are
contained in T.D. 94-4 (adding a new Part 102, Customs
Regulations). The marking requirements of these goods are set
forth in T.D. 94-1 (interim amendments to various provisions of
Part 134, Customs Regulations).
Section 134.1(g) of the interim regulations, 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.
In this case, although the plastic bags are imported into
the U.S. from Canada (a NAFTA country), the origin of the bags is
China (a Non-NAFTA country as defined in section 134.1(g)) and
thus, the NAFTA Marking Rules are not applicable. Rather, the
General Marking Rules set forth in Part 134, Customs Regulations
(19 CFR 134), must be applied in order to determine the
appropriate marking requirements of the plastic bags. In this case, you claim that the plastic bags are imported
as usual containers since they are being imported filled with
their contents, toy building blocks.
A usual container is defined in section 134.32(d)(1), (19
CFR 134.32(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 good 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 of any
type of container, including one which is specifically
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. (Emphasis
added).
Examination of the sample plastic bag and brochure indicates
that it is the type of container in which its contents (toy
building blocks) are ordinarily sold. The plastic bag is durable
and in our opinion would commonly be used by the ultimate
purchaser to store the toy blocks when they are not being used.
The plastic bag also does not impart the essential chracter of
the article. Accordingly, we find that the plastic bags in this
case are the type of usual container defined in 19 CFR 134.22(d).
Section 304(b), of the Tariff Act of 1930, as amended (19
U.S.C. 1304(b)) states in part 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.
The plastic bags, in this case, are imported into the U.S.
already filled with their contents--toy building blocks--and thus
in our opinion, are being used as usual containers at the time of
importation. Accordingly, the plastic bags are excepted from
being marked with their own country of origin--China--pursuant to
19 U.S.C. 1304(b). However, the toy building blocks or the
plastic bags must be marked to indicate the country of origin of
the toy blocks to the ultimate purchaser. See, 19 U.S.C.
1304(a). HOLDING:
Plastic bags of Chinese origin imported from Canada filled
with toy building blocks in the manner described above are
considered to be usual containers as defined in 19 CFR 134.22(d).
Because the plastic bags are used as usual containers at the time
of importation, they are excepted from being marked with their
own origin pursuant to 19 U.S.C. 1304(b). The toy building
blocks or the plastic bags must be marked to indicate the country
of origin of the toy building blocks to the ultimate purchaser.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is 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