COUNTRY OF ORIGIN MARKING OF IMPORTED BIRDSEED SACKS

N051336 February 12, 2009 MAR-2 OT:RR:NC:N3:351 CATEGORY: MARKING Paul S. Anderson Sonnenberg & Anderson 125 South Wacker Drive Suite 1825 Chicago, IL 60606 RE: COUNTRY OF ORIGIN MARKING OF IMPORTED BIRDSEED SACKS Dear Mr. Anderson: This is in response to your letter dated January 27, 2009, on behalf of AMS Associates, Inc., d/b/a Shapiro Packaging, of Grand Rapids, Mich., requesting a ruling on whether the proposed method of marking the container in which the seed sacks are imported in lieu of marking the article itself is an acceptable country of origin marking for the imported seed sacks. A marked sample container was not submitted with your letter for review. The samples of the sacks that you submitted under separate cover are being retained by this office. The items in question are sacks that are imported empty and will be filled in this country with birdseed. (Some of Shapiro’s clients are animal feed companies and their sacks used for animal feed are considered to be identical for purposes of this ruling.) The sacks are manufactured in China, Pakistan, and possibly other countries. The samples we received are made of woven polypropylene strips. Other bags may be made of strips of polyethylene or other plastics. You state that the sacks have an extrusion laminate surface and are imported pre-printed. The sacks are pre-printed according to the needs of the individual customers and will be filled and sealed in this country. The bags are imported empty, folded flat, and palletized. One end of each sack, often containing a plastic handle, is sealed; the bags are filled from the other end with seed or feed and sealed. According to your letter, Shapiro believes that the feed or seed will in all cases be made and sourced in the U.S. On the rear, at the bottom, each sample is marked with the phrase “Packed for” or “Manufactured by,” followed by the name and United States location of the company that will receive the sacks and fill them with birdseed (e.g., “Weis Markets, Inc., Sudbury, PA 17801 USA”). You state that this is typical of Shapiro’s importations. In your letter you request guidance on the proper country of origin for these foreign-manufactured sacks, imported empty, to be filled with U.S.-produced products. The marking statute, section 304, 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 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 and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. In this case, the ultimate purchaser of the seed bags is the company that will fill it and sell the seed. An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. You state that the outermost area of the packaging on each pallet is clearly marked with the country of origin of the sacks. If Customs and Border Protection (CBP) is satisfied that the sacks will remain in their container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the sacks by viewing the container in which they are packaged, the individual sacks would be excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the sacks are imported and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for the imported sacks provided the port director is satisfied that the sacks will remain in the marked container until it reaches the ultimate purchaser. Because a U.S. reference appears on the imported sacks when they are imported into the U.S., it is necessary to consider the necessity for additional marking. Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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 locality in the United States appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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 purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of an article as to the actual origin of the imported good. CBP has recently determined that the special requirements of 19 CFR 134.46 should not be applied automatically to all imported articles or their containers which bear a non-origin geographical reference. In instances where the imported article is substantially transformed in the U.S. by the ultimate purchaser, as with the imported sacks in this case, CBP has held that the special requirements of 19 CFR 134.46 are not applicable since the ultimate purchaser would not be misled by the U.S. reference. This rationale applies to this case. The U.S. seed company that fills the imported sacks is the ultimate purchaser. Assuming the ultimate purchaser receives the imported bags in containers properly marked with the country of origin, it would know the country of origin of the imported bags and would not be misled by the U.S. reference. Therefore, the special marking requirements of 19 CFR 134.46 are not applicable. Accordingly, the imported sacks that are processed in the manner described above are not required to be individually marked with the country of origin and can be imported marked with a U.S. reference provided that (1) they are imported in containers properly marked with the country of origin; (2) the imported sacks will reach the ultimate purchaser (the seed company) in the original marked containers and (3) the seed company will use the imported bags as only described above. Regarding the seed or feed company’s information, marking the bag with a U.S. reference is allowable, assuming that the contents (the seed or feed) are not the growth or product of a foreign country. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at (646) 733-3102. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division