MAR-2-05 CO:R:C:V 734596 ER
Ms. Phyllis Timpone
ITP Corporation
P.O. Box 2345
South Hackensack, N.J. 07606-2345
RE: Country of Origin Marking of Vinyl Blanket Bags Imported to
be Filled with Durable Goods; 19 CFR 134.23(a); C.S.D. 87-
1; HQ 734190; HQ 726298 revoked.
Dear Ms. Timpone:
This is in response to your letter of April 6, 1992, in
which you request a ruling regarding the country of origin
marking requirements for 4 mil vinyl blanket bags imported from
China and Taiwan.
FACTS:
Clear vinyl blanket bags, made of gauge (4 mil or less), are
imported empty from Taiwan and China and are designed to
completely enclose the merchandise with which they are
subsequently filled. The sample bag submitted with the ruling
request measures approximately 18" in length, 15" in width, 5" in
depth and is box-like when opened and filled. The edges of the
bag are stitched together and the top is fitted with a zipper
which is sewn to three sides of the opening.
The bags are not individually marked with country of origin
but are sold in cartons marked with country of origin to American
textile manufacturers such as Dan Rivers, West Point Pepperell,
Crown Crafts, Whiting Manufacturing and The Bibb Company. The
empty bags are filled by the textile manufacturers with blankets
for retail sale. It is your opinion that when the bags are
individually marked with country of origin, confusion results to
the retail buyer as to the country of origin of the contents.
Copies of letters from Crown Crafts, Inc., Stevens Home
Fashions, Dan River Inc., and Louisville Bedding Company were
enclosed. These letters state that the company purchasing the
vinyl bags is a domestic customer of either ITP or Greenway
Industries Corp., is aware of the country of origin of the
unmarked bag by virtue of the marking on the carton in which the
bags are received, and requests that individual marking of the
bags be waived because of the confusion that results to the
retail buyer regarding the origin of the contents. The various
products referenced in these letters which are packed inside the
vinyl bags for retail sale include, textile products generally,
accessories presumably for home fashions, comforters, and
mattress pads.
ISSUE:
Whether the vinyl bags imported empty to be filled with
various products constitute reusable or disposable packaging for
purposes of the country of origin marking requirements of 19
U.S.C. 1304 and 19 CFR Part 134, Subpart C.
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304) provided 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 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 purpose of the marking statute is set forth in United
States v. Friedlaender & Co., 27 C.C.P.A. 297, 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 imported goods the country of which the goods are a
product. The purpose is to mark the goods so that at the time of
purchase, the purchaser may, by knowing where the goods were
produced, by able to buy or refuse to buy them, if such marking
should influence his will.
In order to determine whether the vinyl bags are excepted
from country of origin marking requirements, it is first
necessary to establish whether the bags are disposable or
reusable containers as well as to ascertain the identity of the
ultimate purchaser of the bags within the meaning of 19 U.S.C.
1304.
Disposable containers are defined as the usual ordinary
types of containers or holders which are ordinarily discarded
after the contents have been consumed (e.g., cans, bottles, paper
bags, etc.). See section 134.24(a), Customs Regulations (19 CFR
134.24(a)). The person or firm who fills such containers is
considered to be the ultimate purchaser and the containers are
excepted from individual marking pursuant to 19 U.S.C.
1304(a)(3)(D). Only the outside wrappings or packages for these
containers shall be marked to indicate the country of origin.
See section 134.24(c), Customs Regulations (19 CFR 134.24(c)).
A reusable container is one which is designed for or is
capable of reuse after the contents have been consumed. If these
containers have a lasting value or decorative use (e.g.,
fancy cologne bottles reusable as flower vases and mustard jars
reusable as beer mugs) they must be individually marked with
their own country of origin. See section 134.23, Customs
Regulations (19 CFR 134.23). The consumer purchasing the
contents is considered to be the ultimate purchaser of the
containers.
In C.S.D. 87-1 (October 10, 1986) Customs considered whether
imported plastic shopping bags, given by retail stores to their
customers with the purchase of items, were subject to the country
of origin marking requirements of 19 U.S.C. 1304. In that case
Customs found that the "ultimate purchaser" of the plastic
shopping bags was not the retail store, but its customer who was
the user of the bags and the last to receive them in the form in
which they were imported. Here, Customs also distinguished
between "flimsy" plastic bags, of the "throw-away" variety, and
those of a durable nature, with a use and identity separate from
their contents. Thus, since the bags were durable enough to be
used again, individual marking was required. The decision was
affirmed on reconsideration (HQ 730530 (July 9, 1987)). See also
HQ 734495 (April 21, 1992) (decorative tins imported empty to be
filled with merchandise for retail sale, constitute reusable
containers) and HQ 729476 (October 10, 1986) (plastic shopping
bags are durable and capable of reuse). Cf., C.S.D. 88-28 and
HQs 733716 (June 6, 1991), 733675 (May 16, 1991), and 731661
(December 16, 1988) where the containers were disposable.
In response to a request for internal advice (HQ 734190
(November 18, 1991)), a case factually similar to the one at
hand, Customs ruled that vinyl bags imported empty to be filled
with durable goods (blankets and pillows) constitute reusable
containers subject to individual country of origin marking.
There, Customs noted that pursuant to 19 CFR 134.23, containers
are considered reusable if they are either designed for or
capable of reuse after the contents have been consumed, or impart
the essential character to the whole importation. Finding the
vinyl bags to be of durable nature and capable of repetitive use
and distinguishable from the "flimsy" bags ordinarily discarded
after the contents are consumed, Customs directed that the vinyl
bags be individually marked to indicate the country of their own
origin with a marking such as, "Bag Made in (name of country)."
HQ 734190 supra evidenced the affirmative departure from the
position previously adopted in HQ 726298 (September 17, 1986)
regarding the marking of vinyl blanket bags.
Applying these considerations to the vinyl bags at issue,
Customs is of the opinion that the subject bags are designed for
and capable of reuse. Therefore, the consumer purchasing the
vinyl bags and their contents is the ultimate purchaser and the
bags are not excepted from individual marking pursuant to 19 CFR
134.24 and 19 U.S.C. 1304(a)(3)(D) and must be conspicuously
marked to indicate their own country of origin. The type of bag
submitted as a sample is of sturdy construction and is designed
to be retained by the ultimate purchaser after its contents are
removed to be used again as a storage device or as a container
for other items. Additionally, these bags are well-suited for
reuse since they are equipped with a zipper which enables them to
be easily opened and resealed, thus permitting repetitive access.
Accordingly, the marking requirements of section 134.23(a)
are applicable and the vinyl bags must be individually marked
with their own country of origin. An appropriate marking for the
vinyl bags would be "Bag made in ", or similar language.
Such a marking would also alleviate any consumer confusion
regarding the origin of the contents. To the extent that HQ
726298 supra is inconsistent with this decision it is hereby
revoked.
HOLDING:
The vinyl bags imported empty to be filled with merchandise
for retail sale constitute reusable containers for purposes of
the country of origin marking requirements of 19 U.S.C. 1304 and
19 CFR Part 134. Accordingly, the vinyl bags must be
individually and conspicuously marked "Bag made in (name of
country)" (or other similar marking).
Sincerely,
John Durant, Director