Country of origin marking of imported tubes to be filled with cosmetics; 134.22(d)(2); usual container; NAFTA

HQ 561829 December 15, 2000 MAR-2 RR:CR:SM 561829 KSG CATEGORY: Marking Ernesto Bustamante Operations Manager William F. Joffrey, Inc. P.O. Box 698 Nogales, Arizona 85628-0698 RE: Country of origin marking of imported tubes to be filled with cosmetics; 134.22(d)(2); usual container; NAFTA Dear Mr. Bustamante: This is in response to your letter of July 17, 2000, on behalf of Thatcher Tubes, requesting a binding ruling concerning the country of origin marking requirements for imported tube containers. You submitted a sample for our examination. FACTS: Thatcher Tubes plans to import empty disposable plastic tube containers and caps that are made in Mexico. Once imported into the U.S. through the port of Nogales, Arizona, the plastic tubes will be shipped to customers who will fill and seal the tubes to form the finished article. The tubes will be filled with various products of U.S. origin, including hand cream. The filled and sealed tubes will be sold to ultimate purchasers in the U.S. The imported empty tubes will be marked with the name and address of the U.S. manufacturer of the various products (for example, hand cream) to be inserted into the tubes as well as instructions on use of the product. The sample submitted is an empty tube for Neutrogena hand cream. On the back of the tube, there is a U.S. address of Neutrogena Corporation and the phrase “Made in U.S.A.” ISSUE: What are the country of origin marking requirements for imported tube containers, as described above? 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 its container) will permit, in such a 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 of 19 U.S.C. 1304. Section 134.22(d)(1), Customs Regulations (19 CFR 134.22(d)(1)), defines “usual container’ as a container in which a good will ordinarily reach its ultimate purchaser. With regard to a good of a NAFTA country which is a usual container, section 134.22(d)(2) provides that: A good of a NAFTA country which is a usual container, whether or not disposable and whether or not imported empty or filled, is not required to be marked with its own country of origin. If imported empty, the importer must be able to provide satisfactory evidence to Customs at the time of importation that it will be used only as a usual container (that it is to be filled with goods after importation and that such container is of a type in which these goods ordinarily reach the ultimate purchaser). In a similar case, Customs held in Headquarters Ruling Letter (“HRL”) 559073, dated June 28, 1995, that empty cosmetic containers imported into the U.S. to be filled with U.S.- made cosmetics were excepted from being marked with their country of origin pursuant to 19 CFR 134.22(d)(2). However, the outermost containers in which the cosmetic containers are imported and reach the ultimate purchaser in the U.S. are required to be marked with the country of origin of the cosmetic containers. Also see HRL 560705, dated January 28, 1998. Based on the above, we find that pursuant to 19 CFR 134.22(d), the imported tubes and caps in this case are “usual containers” and are excepted from individual marking pursuant to 19 CFR 134.22(d)(2). The outermost containers in which the tubes and caps are imported and reach the ultimate purchaser in the U.S. are required to be marked with the origin of the tubes and caps. The term “ultimate purchaser” for a good of a NAFTA country is defined in 19 CFR 134.1(d) as “the last person in the U.S. who purchases the good in the form in which it was imported.” In this case, the customers in the U.S. who fill the plastic tubes with their products would be considered the ultimate purchasers of the tubes. See 19 CFR 134.24(c)(1). Section 134.46, Customs Regulations (19 CFR 134.46), as amended, provides: In any case in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as the actual country of origin of the article, there shall appear legibly and permanently in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning. The U.S. address on the sample tube submitted is the address of the ultimate purchaser and therefore, it would not trigger the special marking requirements of 19 CFR 134.46 since the ultimate purchaser would not be confused or misled by its own address. However, it would be unacceptable under 19 U.S.C. 1304 for the imported empty tube containers to be marked “Made in U.S.A.” as they are of foreign origin. Whether the tubes may be marked “Made in U.S.A.” after they are filled in the U.S. is within the jurisdiction of the Federal Trade Commission. HOLDING: Pursuant to 19 CFR 134.22, the imported empty tubes and caps are usual containers and are excepted from being marked with their own country of origin. The outermost containers in which the unfinished tubes and caps are imported are required to be marked with the origin of the tubes and caps (Mexico). At the time of importation, the empty foreign-origin tubes may not be marked “Made in U.S.A.” A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. 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