CLA-2 CO:R:C:S 557614 WAS
Mr. Michael Couch
Pacific Island Imports
P.O. Box 855
Skippack, PA 19474
RE: Applicability of subheading 9801.00.10, HTSUS, to Coca-Cola
bottles from Emirau Island in the Bismark Archipelago
Dear Mr. Couch:
This is in reference to your letter dated August 25, 1993,
regarding DD 887472 dated July 8, 1993, issued by the District
Director, Laredo, TX, concerning the applicability of subheading
9801.00.10, Harmonized Tariff Schedule of the United States
(HTSUS), to empty Coca-Cola bottles imported from the Emirau
Island in the Bismark Archipelago into the U.S.
FACTS:
The merchandise at issue consists of old Coca-Cola bottles,
dating between 1942 through 1945. You state that these bottles
had been left on the Pacific Islands by United States Marines
during World War II. You also state that Pacific Islands Imports
intends to market them as souvenirs in the U.S. They are
described as six fluid ounce, contour-shaped, green and white
(clear) bottles, bearing patent number D105529. Both the green
and the clear bottles are embossed with their year of manufacture
and with the manufacturing mark of Owens Illinois, however, only
the green bottles are embossed with the U.S. country of origin
marking.
In DD 887472, the Laredo Customs District found that those
bottles embossed with the U.S.-origin marking, were eligible for
duty-free treatment under subheading 9801.00.10, HTSUS, while
those bottles which were not marked to indicate their U.S.-origin, would be fully dutiable under either subheading
7013.99.4000 or 7013.99.5000, HTSUS, depending upon their value.
Subsequent to the issuance of DD 887472, you submitted
additional evidence to show that both the green and clear Coca-Cola bottles were of U.S.-origin in the form of:
(1) A list of trademarks used by Coca-Cola Bottle
Manufacturers identifying the markings on the subject bottles to
be those of Owens Illinois;
(2) A letter from Coca-Cola archives department stating that
the origin of these bottles was the U.S.;
(3) Documents issued by Papua, New Guinea government
certifying where these bottles were found and their historic
authenticity.
You claim that this additional information should be
sufficient to establish that the Coca-Cola bottles imported from
the Emirau Island in the Bismark Archipelago are of U.S.-origin,
and therefore, should be eligible for duty-free treatment under
subheading 9801.00.10, HTSUS, when returned to the U.S.
ISSUE:
Whether the green and clear Coca-Cola bottles are entitled
to duty-free treatment under subheading 9801.00.10, HTSUS.
LAW AND ANALYSIS:
Subheading 9801.00.10, HTSUS, provides for the free entry of
U.S. products that are exported and returned without having been
advanced in value or improved in condition by any means while
abroad, provided the documentary requirements of section 10.1,
Customs Regulations (19 CFR 10.1), are met. While some change in
the condition of the product while it is abroad is permissible,
operations which either advance the value or improve the
condition of the exported product render it ineligible for duty-free entry upon return to the U.S. See Border Brokerage Company
Inc. v. United States, 65 Cust. Ct. 50, C.D. 4052, 314 F. Supp.
788 (1970), appeal dismissed, 58 CCPA 165 (1970).
Compliance with section 10.1(a) is mandatory and a condition
precedent to recovery unless compliance has been waived or is
impossible. Maple Leaf Petroleum, Ltd. v. United States, 25 CCPA
5, T.D. 48976 (1937). The basis for waiver of the required
documentation is predicated on the Customs Service being
satisfied by the production of other evidence as to the U.S.
origin of the merchandise and its eligibility under 9801.00.10,
HTSUS.
The question presented in this case is whether the evidence
you submitted is sufficient to establish that the green and clear
Coca-Cola bottles imported into the U.S. from the Emirau Island
in the Bismark Archipelago are "products of" the U.S.
In view of the additional information you have submitted, we
are of the opinion that you have established that both the green
and clear Coca-Cola bottles are "products of" the U.S. You have
shown that both the green and clear bottles are embossed with the
Owens Illinois trademark. A telefax from Coca-Cola dated August
23, 1993, confirms that the bottles containing the manufacturing
trademark of Owens-Illinois were produced in the U.S. and that
Owens-Illinois was in operation during the period from 1942
through 1945. This telefax also states that Coca-Cola believes
that all of the World War II bottles that have been discovered in
the South Pacific region over the last several years were
produced in the U.S. and shipped to American troops in that area.
In the August 23, 1993 telefax, Coca-Cola states that the bottles
produced during World War II were 6 1/2 ounces in volume, but
that they were marked, for legal reasons, as containing a minimum
content volume of 6 fluid ounces. In addition, Coca-Cola states
that most of the bottles produced during World War II for
domestic consumption were green, and the clear bottles were
targeted for overseas consumers.
In a letter to you dated September 13, 1993, a
representative from Owens-Brockway (a unit of Owens-Illinois)
confirmed that the registered trademark found on the Coca-Cola
bottles during the time period in question identify Owens-Illinois as the domestic manufacturer of the subject bottles.
The letter also stated that Owens-Brockway manufactured for Coca-Cola during the period from 1942 through 1945. This letter was
resubmitted directly to Customs Headquarters on March 22, 1994,
under a declaration of its truth and accuracy.
HOLDING:
Based on the information submitted, we are of the opinion
that the green and clear Coca-Cola bottles described herein which
are imported from the Emirau Island, are "products of" the U.S.
Therefore, as these bottles have not been advanced in value or
improved in condition abroad, they will qualify for the duty
exemption available under subheading 9801.00.10, HTSUS, when
returned to the U.S.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. 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
cc: District Director, Laredo, TX
AD, New York Seaport