MAR-2-05 CO:R:C:V 732986 NL
Mr. P.T. Hick
Export Director
First Cover Limited
Unit 2, Eastlands Lane
Tonbridge, United Kingdom TN126BU
RE: Country of Origin Marking - Decorative Paper Bags;
Disposable Containers; Ultimate Purchaser
Dear Mr. Hick:
This is in response to your letter of December 7, 1989, in
which you ask for a ruling that decorative paper bags sold by
First Cover are disposable containers under the country of
origin marking regulations. We regret the delay in responding.
FACTS:
As stated in Customs' previous information letter 732118
(November 28, 1989), the subject articles are decorative paper
bags imported in bulk for sale to retailers who use them as
packaging for assortments of goods such as cosmetics or small
gifts. It is our understanding that the retailers do not sell
the bags to their customers.
A sample bag has been submitted. It is fashioned of paper
which has a laminated metallic surface and two braided nylon
handles, with dimensions of approximately 6"x 5"x 2". The
appearance of the bag is that of a small holiday shopping bag.
A ruling is requested that the bag may be treated as a
disposable container pursuant to 19 CFR 134.24, and thus excepted
from individual country of origin marking.
ISSUE:
Is this type of bag, imported and sold as stated above, a
disposable container for purposes of the country of origin
marking regulations?
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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 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. With respect to containers, Subpart C of Part 134
generally provides that containers which are reusable are subject
to country of origin marking at importation, while containers not
designed for or capable of reuse are not required to be
individually marked. The distinction drawn is between: (1)
containers such as tanks, drums, and similar shipping or storage
containers, or containers in the special class of decorative
holders, jars, or bottles which are intended to be reused apart
from their imported contents; and (2) containers such as boxes,
bags, and other holders which are ordinarily discarded after
their contents have been consumed. With respect to reusable
containers, 19 CFR 134.34(b) provides that when imported in bulk
the marking requirement ordinarily may be met by marking the
outermost container which reaches the ultimate purchaser.
In this case it is our opinion that bags of this type, sold
in bulk to retailers who use them as described, qualify as
disposable containers within the meaning of Subpart C of Part
134. Although the sample bag is attractively decorated, and its
surface is more durable than that of an ordinary paper or plastic
bag, we find that, under the circumstances presented, it has the
characteristics of a disposable container. That is, it is
imported to be filled with other articles which will be the chief
objects of a retail purchaser's interest, and such retail
purchasers are not likely to retain the bag for other purposes
after the articles have been removed or consumed. These
characteristics are shared with other articles which Customs has
found to be disposable containers. See, HQ 731863 (February 14,
1990)(cosmetic case imported to be filled); HQ 731388 (June 17,
1988)(bagging for potatoes); HQ 731318 (August 12, 1988)(vinyl
cases to be filled with pills); HQ 732823 (January 19, 1990)
(cardboard shoe boxes allegedly having subsequent uses).
Pursuant to 19 CFR 134.24(b), marking country of origin on
the outermost containers in which the disposable bags reach the
ultimate purchaser will satisfy the country of origin marking
requirements of 19 U.S.C. 1304. If the district director is
satisfied that in all circumstances the bags will be used as
described above, and that the retailer will be the ultimate
purchaser of the bags, the bulk marking will suffice. On the
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other hand, if the district director has reason to believe that
the ultimate purchaser may be the retailer's customer who
purchases bags as separate articles (such as at a store selling
party decorations and favors), the importer may properly be
required to mark the bags individually or, pursuant to 19 CFR
134.32(d), to mark outsides of the smaller retail containers in
which the bags might be sold to such ultimate purchasers, or more
generally to follow the procedures for repackaging and marking as
might be applicable under the circumstances.
The administrative difficulties inherent in these
circumstances, i.e., the need to determine whether the bags will
be used by retailers for insubstantial packaging or will be sold
to ultimate purchasers as separate articles, could be avoided
simply by marking the bags. Although it has been suggested that
the bags are incapable of being marked, this issue has not been
raised formally. Upon examination of the sample bag, it is our
opinion that it could be marked, either with a sticker on the
outside or by printing on the inside. The words "Bag made in
..." would eliminate any risk of confusion between the origin of
the contents and the bag itself. Thus, while we are not
requiring the bag itself to be marked, the importer would bear
the burden of demonstrating to Customs that the bags are sold in
the manner described, and not diverted into retail commerce as
separate articles.
HOLDING:
The decorative bags qualify as disposable containers within
the meaning of Subpart C of 19 CFR Part 134. When used by
retailers to package other articles, they may be excepted from
country of origin marking, provided the immediate containers in
which they are sold and delivered to such customers are so
marked, and the district director is satisfied that all the
imported bags will be used in this fashion. If not, the bags
may be required to be marked, or their retail containers to be
marked, such that the ultimate purchaser is afforded a clear
indication of their country of origin. It is further our
determination that the bags themselves are capable of being
marked, and as such, the burden is upon the importer to
demonstrate that the bags will be used as described.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch