OT:RR:CTF:FTM H303064 PJG
Mr. Randall Garcia
Jaime Maduro LLC Customs Brokers
State Road #165 Km. 2.4 Centro Mercantil Intl.
Adm Bldg. Local 1-03
Guaynabo, Puerto Rico 00965
RE: Modification of NY N153956; country of origin marking of a pill case
Dear Mr. Garcia:
This letter pertains to New York Ruling Letter (“NY”) N153956, dated April 14, 2011, which concerns the country of origin marking and tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a pill case. For the reasons set forth below, we are modifying NY N153956 only insofar as to change the country of origin marking determination made in that ruling.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on September 25, 2019, in Volume 53, Number 34, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N153956, the pill case was described as follows:
The item is a pill case; similar in design to a business card case. It is constructed of a [cellular] plastic sheeting material that is not reinforced with a textile material. The case has an interior storage compartment and is designed to provide portability, protection, organization and storage to contraceptive pills. It measures approximately 3.75” (W) x 4.5” (L). The case is of a durable construction and suitable for repetitive use….
You state in your letter that at the time of importation the outer shipping carton of the pill cases will be marked “Made in China”. After importation the importer will inspect the products and then will send the articles to a pharmaceutical company at which time they will be placed in a package with the pills. You have requested an exception from marking requirements because the articles will not be sold at retail but rather as packing for the pills.
In NY N153956, CBP determined that “the ultimate purchaser of the [pill] case is the consumer who receives the case with the pills” and “[e]ach pill case must be marked” to meet the requirements of 19 U.S.C. § 1304 and 19 C.F.R. part 134.
ISSUE:
Who is the ultimate purchaser of the pill case and is it acceptable to provide the country of origin marking on the outermost container of the pill cases?
LAW AND ANALYSIS:
The marking statute, Section 304(a), Tariff Act of 1930, as amended (19 U.S.C.
§ 1304(a)), provides that unless excepted, every article of foreign origin imported into the United States 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 an ultimate purchaser in the United States the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. § 1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on 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.” United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940).
Part 134 of Title 19 of the Code of Federal Regulations (19 C.F.R. Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(d) (19 C.F.R. § 134.1(d)) provides, in pertinent part, as follows:
(d) Ultimate purchaser. The “ultimate purchaser” is generally the last person in the United States
who will receive the article in the form in which it was imported; however, for a good of a NAFTA country, the “ultimate purchaser” is the last person in the United States who purchases the good in the form in which it was imported. It is not feasible to state who will be the “ultimate purchaser” in every circumstance.
The marking requirements include provisions for reusable and disposable containers. Section 134.23 (19 C.F.R. § 134.23) provides the country of origin marking requirements for reusable containers, and we have previously “explained that the type of reusable containers described in section 134.23 fall into two classes: articles such as steel drums, tanks, and other storage or transportation containers; and, containers or holders which have a lasting value or decorative use, such as decorative mustard jars, shaving mugs and cologne bottles.” See HQ H007770 (May 21, 2007). Specifically, 19 C.F.R. § 134.23 provides as follows:
Usual and ordinary reusable containers or holders. Except for goods of a NAFTA country which are usual containers, containers or holders designed for or capable of reuse after the contents have been consumed, whether imported full or empty, must be individually marked to indicate the country of their own origin with a marking such as, “Container Made in (name of country).” Examples of the containers or holders contemplated are heavy duty steel drums, tanks, and other similar shipping, storage, transportation containers or holders capable of reuse. These containers or holders are subject to the treatment specified in General Rule of Interpretation 5(b), Harmonized Tariff Schedule of the United States (19 U.S.C. 1202).
Other reusable containers or holders. Containers or holders which give the whole importation
its essential character, as described in General Rule of Interpretation 5(a) (19 U.S.C. 1202), must be individually marked to clearly indicate their own origin with a marking such as, “Container made in (name of country).” Examples of the containers contemplated are mustard jars reusable as beer mugs; shaving soap containers reusable as shaving mugs; fancy cologne bottles reusable as flower vases, and other containers which have a lasting value or decorative use.
Section 134.24 (19 C.F.R. § 134.24) provides the country of origin marking requirements for disposable containers. Specifically, 19 C.F.R. § 134.23(a) and (b) provides as follows:
Containers ordinarily discarded after use. Disposable containers or holders subject to the
provisions of this section are the usual 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.
Imported empty. Disposable containers or holders imported for distribution or sale are
subject to treatment as imported articles in accordance with the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), and shall be marked to indicate clearly the country of their own origin. However, when the containers are packed and sold in multiple units (dozens, gross, etc.), this requirement ordinarily may be met by marking the outermost container which reaches the ultimate purchaser.
In HQ 731318, dated August 12, 1988, CBP considered the country of origin for marking purposes of vinyl cases that were imported in bulk. The pill cases were to be sold to a pharmaceutical company to be filled with one packet of birth control pills for distribution to the consumer by resale or free distribution. CBP indicated that the pill cases were “quite thin and flimsy in nature and measure approximately 4 ½ inches x 3 ¾ inches.” CBP determined that the pill cases were “disposable containers within the meaning of 19 CFR 134.24 since they are an ordinary type of packaging which in most cases would be discarded after the pills have been consumed” and “[u]nlike the reusable containers mentioned in 19 CFR 134.23, the vinyl containers are flimsy and have no lasting value or decorative use.” In HQ 731318, CBP decided that “it is acceptable to mark the outermost package which reaches the ultimate purchaser,” which CBP identified as the pharmaceutical company.
In NY N153956, CBP determined that the subject pill “case is of a durable construction and suitable for repetitive use.” Upon further consideration and review of a sample of the subject merchandise, we disagree. The instant pill case constructed of plastic sheeting material is substantially similar to the merchandise at issue in HQ 731318. Both products are constructed of plastic, and are of a thin, flimsy nature, with “no lasting value or decorative use” and likely to be discarded after the pills contained therein have been consumed. See HQ 731318 (Aug. 12, 1988). Moreover, the subject pill cases are not similar to the two classes of reusable containers provided for in 19 C.F.R. § 134.23, specifically, “shipping, storage, transportation containers or holders capable of reuse” and “containers which have a lasting value or decorative use.” See also HQ H007770 (May 21, 2007).
The country of origin marking of the instant pill cases is governed by 19 C.F.R. § 134.24, which provides the marking requirements for disposable containers. Pursuant to 19 C.F.R.
§ 134.24(b), when disposable “containers are packed and sold in multiple units,” as in the instant case, the “outermost container which reaches the ultimate purchaser” may be marked to meet the requirements of 19 U.S.C. § 1304. Consistent with 19 C.F.R. § 134.1(d), the ultimate purchaser of the instant pill cases is the pharmaceutical company because they are “the last person in the United States who will receive the article in the form in which it was imported.” See HQ 731318 (Aug. 12, 1988). Therefore, it is acceptable to mark the outermost container of the pill cases that will be packed and sold to the pharmaceutical company with the country of origin. See 19 C.F.R. § 134.24(b).
HOLDING:
In accordance with 19 C.F.R. § 134.24(b), it is acceptable to mark the outermost container of the pill cases that will be received by the ultimate purchaser, specifically, the pharmaceutical company, because the pill cases are disposable and they are packed and sold to the pharmaceutical company in multiple units.
EFFECT ON OTHER RULINGS:
NY N153956, dated April 14, 2011, is hereby MODIFIED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division