MAR-2-05 CO:R:C:V 734190 GRV

District Director of Customs
U.S. Customshouse
1 East Bay Street
Savannah, GA 31401

RE: Internal Advice relative to country of origin marking of reusable (piped edged and zippered) vinyl bags imported to be filled with durable good (blankets and pillow) merchandise. 19 CFR 134.22(b); 19 CFR 134.23(a); C.S.D. 87-1; 731661; 733675; 732823; 19 CFR 134.24; 730530; 729476; C.S.D. 88-28; 733716; 19 CFR 134.24(c); disposable packaging

Dear Sir:

This is in response to your memorandum of May 23, 1991, requesting internal advice relative to the country of origin marking requirements applicable to certain vinyl bags imported empty to be filled with blankets and pillow merchandise. A sample vinyl bag was submitted for examination.

FACTS:

Clear vinyl bags, designed to completely enclose the mer- chandise contained therein, are imported empty by the Vinyl Bag Company to be sold to the Piedmont Paper Company, which fills the bags with pillows and blankets for retail sale. The vinyl bags are imported in cartons containing 144 bags each. The cartons are marked with the country of origin of the vinyl bags, but the individual bags are not marked. The bags are box-like when filled, measuring approximately 18" in length, 15" in width, and 5" in depth. The edges of the bag are piped with a white vinyl strip that is sewn on. A zipper is attached at one end of the bag; opening only three sides of one bag end, to allow access to the contents.

Internal advice is requested because the importer claims that he has been subjected to inconsistent treatment at various ports regarding whether the bags have to be marked with thier country of origin marking or not. The importer contends that the bags are disposable--not capable of reuse--and, therefore, are exempt from marking requirements under the provisions of 19 CFR 134.24(c). Your office contends that the vinyl bags are reusable --not disposable--and, therefore, should be marked in accordance with 19 CFR 134.23(a). Your position is based on the sturdy construction and durability of the bag, as well as the zipper feature. Further, you state that because the bag is not dedi- cated to a specific shape it can store various articles, attest- ing to its reusable character.

Two other issues raised by the circumstances of this case are (1) the identity of the ultimate purchaser, and (2) whether the imported bags could not be marked prior to their shipment to the U.S. except at an expense economically prohibitive of their importation--a condition which excepts the imported articles from the marking requirements. Regarding the identity of the ultimate purchaser, the importer contends that Piedmont Paper Co., is fully aware that these bags are made in China, and that the retail consumer is buying the article in the bag, not the bag itself, whereas, your office contends that since the bag is not substantially transformed by Piedmont Paper--only filled--they are not the ultimate purchasers. Regarding the economically prohibitive marking expense issue, although the importer claims that it is a very expensive procedure that exceeds the cost of the item itself, your office dismisses this argument because no documentary evidence was submitted in support of this claim. Further, it was not clear whether the importer was claiming that domestic marking operations were expensive or that foreign marking operations were expensive.

Your office also requests that if Headquarters agrees with your assessment in this matter to provide an acceptable manner of marking the bag.

ISSUE:

Whether the vinyl bags (piped and zippered) imported empty to be filled with blanket and pillow merchandise 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:

The marking statute, 304 of the 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 pur- chaser 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 this provision is to permit the "ultimate purchaser" in the U.S. to choose between domestic and foreign- made products, or between the products of different foreign countries. See, United States v. Friedlaender & Co., C.A.D. 104, 27 CCPA (1940); National Juice Products Association v. United States, 10 CIT 48, 628 F.Supp. 978 (1986). The "ultimate purchaser" is defined generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d).

In C.S.D. 87-1 (dated October 10, 1986) we 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 we 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. Similarly here, the ultimate purchaser of the imported vinyl bags is the customer and not Piedmont Paper, as the customer is the last person in the U.S. to receive the item in the form in which it is imported.

Where the articles imported constitute containers, 19 CFR Subpart C is applicable, and section 134.22(b) of this subpart provides generally that containers for imported merchandise which are subject to treatment as imported articles under the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), shall be marked to indicate clearly the country of their own origin in addition to any marking which may be required to show the country of origin of their contents. However, the country of origin marking requirements applicable to containers imported empty depend, in part, on whether the containers are reusable or disposable in nature. Specifically, 134.22(d)(3) and 134.24(c) provide that disposable containers imported by persons or firms who fill them with various products which they sell may be excepted from individual marking pursuant to 19 U.S.C. 1304(a) (3)(D). However, this exception is not applicable if the imported containers are reusable. Thus, the vinyl bags may be excepted from individual marking only if they are disposable containers, as provided at 134.24. Section 134.24(a) provides that disposable containers 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.

In contrast, under 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. Such containers, 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)." Illustrative examples of the containers contemplated by this section include heavy duty steel drums, tanks, and other similar shipping, storage, transportation containers capable of reuse.

In determining whether particular containers are reusable or disposable, Customs has considered both the construction of the container and its function. For example, in Headquarters Ruling Letter (HRL) 732823 dated January 19, 1990, we considered whether imported cardboard shoe boxes used to package U.S.-origin shoes were disposable and, therefore, exempt from individual country of origin marking or reusable and, therefore, required to be indi- vidually marked with their country of origin. Finding that card- board shoe boxes constituted the primary, i.e., usual and ordi- nary, types of containers for shoes and that, being made of non- corrugated cardboard, they were ordinarily discarded after their contents had been consumed, we concluded that they fell squarely within the category of disposable containers and, thus, were exempt from individual marking.

However, in C.S.D. 87-1 we distinguished between plastic bags that were flimsy, of the "throw-away" variety, and those that were durable, with a separate identity and use apart from the products which may be carried in them, and concluded that these latter bags, which were durable enough to be used again, must be individually marked with their country of origin. This decision was affirmed on reconsideration (HRL 730530 dated July 9, 1987). See also 729476 dated October 10, 1986 (plastic shopping bag was durable and capable of reuse). Cf., C.S.D. 88- 28 and HRLs 733716 dated June 6, 1991, 733675 dated May 16, 1991, and 731661 dated December 16, 1988 (finding that the subject containers were disposable).

Applying these considerations to the vinyl bags at issue, and after examining the sample submitted, we believe they do not constitute the usual ordinary types of containers ordinarily discarded after the contents have been consumed. Rather, they constitute the type of durable plastic bags "clearly suitable for repetitive use;" distinguishable from simple, "flimsy" bags ordinarily discarded after the contents are consumed. Therefore, the bags are not excepted from individual marking under 134.24 and 19 U.S.C. 1304(a)(3)(D) and must be conspicuously marked to indicate their own country of origin. This determination is based on the following factors: (1) the sturdy construction of the bag; the edges are reinforced with piping to encourage, if not ensure, continued reuse; (2) the zipper feature at one end of the bag allows repetitive access to the bag; (3) the plastic employed to make these bags is of a durable, i.e., thick, nature, in contrast to the "flimsy," i.e., thin, "throw-away" variety, considered in C.S.D. 87-1; and, (4) a consideration of the nature of the merchandise packaged in the vinyl bags: pillows and blankets are durable goods that can be seasonally used and put away. Accordingly, the marking provisions of 134.23(a) are applicable and the vinyl bags must be individually marked.

An appropriate marking for the bags would be "Bag made in _____."

Regarding the issue of whether the individual bags could not have been marked prior to shipment to the U.S. except at an expense economically prohibitive of the articles importation--a condition which excepts the articles from marking requirements under 19 U.S.C. 1304(a)(3)(C) and 19 CFR 134.32(c), no documen- tary evidence has been submitted to support this claim. Accord- ingly, we cannot determine whether this exception is applicable. However, it should be noted that consideration of this marking exception requires a factually-intense review of all relevant cost data associated with the articles' costs prior to importation.

HOLDING:

The reinforced, zippered vinyl bags imported empty to be filled with durable (blankets and pillow) merchandise constitute reusable packaging for purposes of the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, Subpart C. Accordingly, the bags must be individually and conspicuously marked "Bag made in " (or other similar marking), so that the ultimate purchaser--the customer, not the manufacturer of the merchandise to be packaged--in the U.S. can find the country of origin marking easily and read it without strain.

As no documentary evidence was submitted to support the claim that the individual bags could not be marked prior to shipment to the U.S. except at an expense economically prohibi- tive of their importation, we cannot determine whether this marking exception under 19 U.S.C. 1304(a)(3)C) and 19 CFR 134.32(c) is warranted.

Sincerely,

John Durant, Director
Commercial Rulings Division