MAR-2-05 CO:R:C:V 734691 RSD
Peter J. Fitch, Esq.
Fitch, King and Caffentzis
116 John Street
New York, New York 10038
RE: Country of origin marking requirements for jewelry boxes;
containers; disposable containers; 19 CFR 134.23; 19 CFR 134.24;
HQ 708844; HQ 732836; HQ 734190; HQ 725976; HQ 951028
Dear Mr. Fitch:
This is in response to your letter dated June 10, 1992,
concerning the country of origin marking requirements for jewelry
boxes used by jewelry retailers to package their products. You
have submitted three sample containers for our consideration.
FACTS:
Your client, Jewelpak Corporation, intends to import jewelry
boxes. These jewelry boxes are retail containers used by jewelry
stores and retailers to package products they sell to their
customers. The containers themselves are imported empty, with or
without inserts. They are sold to the retail trade where they
are filled with the articles that are sold in them.
Three sample boxes were submitted. The first box is
designed for the packaging and storage of rings or earrings. Its
dimensions are about 2" by 1 1/2" by 1". The outside of the box
is covered by a gray felt type material. The bottom portion of
the inside of the box is on an angle and is covered by the gray
felt type material. The top section of the inside of the box is
covered by a white smooth satin like material. It is likely that
a jewelry store may put its name and address on this section of
the box. The box opens and closes with the aid of a hinge.
The second box is designed for a watch or a bracelet. Its
dimensions are about 3 1/2" by 3" by 1/2". It is covered on the
inside and outside by a black vinyl-like material. On the inside
of the box is a ring to hold the bracelet or watch in place. It
opens and closes with a hinge.
The third box is designed for necklaces. It measures about
4" by 2 1/2 " by 1 1/4". It is covered on the inside and outside
with white vinyl material. The inside of the box has two pads.
It also opens and closes with a hinge.
You indicate that these containers are treated in the same
manner as other wrapping by the retail trade, and are given away
as a part of the purchase of the retail article. You state that
most of these containers are discarded after the retail article
has been removed. You indicate that these jewelry containers
will not be put to a subsequent use.
It is your contention that these jewelry boxes are not
required to be marked with their country of origin because they
are disposable containers and that the ultimate purchaser is the
retailer who fills them with jewelry. Two affidavits were
submitted in support of your position. The first affidavit is
from Matthew Burris, who is the vice president of operations of
the Finlay Fine Jewelry Corporation, a company that operates
retail jewelry departments at major department stores. In his
affidavit, Mr. Burris states that his company buys the jewelry
boxes to display jewelry on their store shelves or in their
showcases. He further says that while the boxes may appear to be
of sturdy construction, the box inserts are usually made of
cardboard, which cannot withstand excessive use and that
consistent use of the box would destroy it. In addition, Mr.
Burris states he believes that the boxes are discarded after the
jewelry is transported home. He claims that his company knows
this because of the failure of virtually all customers to return
such boxes when jewelry is returned for credit, replacement, or
repair even when sales clerks ask for the box. The affidavit
declares that jewelry contained in the boxes is designed to last
for many years while the boxes themselves will wear out fairly
quickly.
The second affiant, Joniece Johnson, a purchasing agent for
Montgomery Ward & Company, says that she is in charge of
purchasing of the jewelry presentation boxes for the Montgomery
Ward stores. Ms. Johnson states that the boxes are used for the
presentation of jewelry. She further indicates that she believes
that the boxes have no long term use and that the boxes seldom
come back with returned jewelry because customers consider them
to be disposable.
ISSUE:
Are the sample jewelry boxes disposable containers that are
not subject to individual country of origin marking?
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 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. 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 the 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 at 302.
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. As provided in section 134.41, Customs Regulations
(19 CFR 134.41), the country of origin marking is considered to
be conspicuous if the ultimate purchaser in the U.S. is able to
find the marking easily and read it without strain.
In order to determine whether the jewelry boxes are excepted
from the country of origin marking requirements, it is first
necessary to establish whether the jewelry boxes are disposable
or reusable containers and to ascertain the identity of the
ultimate purchaser of the boxes within the meaning of 19 U.S.C.
1304.
Disposable containers are defined as the usual ordinary type
of containers or holders which are ordinarily discarded after the
contents have been consumed (e.g. cans, bottles, paper bags,
etc.). See section 134.24(a), Customs Regulations (19 CFR
134.24(a)). The person or firm who fills such containers is
considered to be the ultimate purchaser and the containers are
excepted from individual marking pursuant to 19 U.S.C.
1304(a)(3)(D). Only the outside wrappings or packages for these
containers shall be marked to indicate the country of origin.
See section 134.24(c), Customs Regulations (19 CFR 134.24(c)).
However, containers which are designed for or capable of
reuse after the contents have been consumed or which give the
whole importation its essential character must be individually
marked to indicate the country of their own origin. See section
134.23, Customs Regulations (19 CFR 134.23). The consumer
purchasing the contents is considered to be the ultimate
purchaser.
In determining whether particular containers are reusable or
disposable, Customs has considered both the construction of the
container and its function. In HQ 734190 (November 18, 1991),
Customs set forth four factors which indicated that vinyl
zippered bags, imported to be filled with blankets and pillows
were reusable containers as defined in 19 CFR 134.23. They were:
1) the sturdy construction of the bag; 2) the zipper feature on
one side of the bag; 3) the durable thick plastic used to make
the bag; 4) and the nature of the merchandise packaged in the
bags. We stated that these factors indicated that the bags were
durable and suitable for repetitive use and clearly
distinguishable from "simple", flimsy bags ordinarily discarded
after the contents are consumed. Therefore, the bags had to
marked to indicate their country of origin.
In HQ 732836 (December 28, 1989), Customs found that a
wallet for a dart set was a substantial permanent container
especially designed to hold darts and had to be marked. In HQ
708844 (March 7, 1978), we ruled that a vinyl carrying case for a
pocket calculator must be marked with its country of origin.
In support of your contention that the jewelry boxes need
not be marked, you cite HQ 725976 (August 9, 1984). That ruling
held that certain small clear plastic containers were disposable
containers which did not have to be individually marked. This
ruling does not give a full description of these plastic boxes or
any description of their contents. However, it appears that the
plastic boxes involved in that case were significantly different
and far less substantial than the jewelry boxes in this case.
For example, there is no indication that they were covered in
vinyl or felt as are the jewelry boxes in this case.
In a ruling on the classification of the jewelry boxes which
are the subject of this ruling request, HQ 951028 (March 3,
1993), Customs reviewed the arguments that the boxes were
inexpensive and flimsy and would be discarded by consumers after
the purchase of the jewelry. Customs determined that the boxes
were sufficiently durable to last a considerable length of time
and that they were sufficient to serve a protective storage
function for the jewelry sold in such boxes. Accordingly,
Customs ruled that these containers were suitable for long term
use and thus are classifiable as jewelry boxes under heading
4202, Harmonized Tariff Schedule of the United States. We noted
that although the jewelry boxes may be discarded by some
consumers, it was also likely that they may be kept by a consumer
for storage of an item purchased. This may be especially true if
the jewelry items are used occasionally or infrequently. For
example, if the piece of jewelry was left in a drawer or dresser
or on a shelf for a considerable length of time, it is likely
that it will be stored in this type of box.
Recently, the United States Court of International Trade in
Bausch & Lomb Incorporated v. United States, Slip Op. 93-147
(August 5, 1993), considered the question of whether imported
sunglasses cases were disposable containers for purposes of the
country of origin marking requirements. The outer layer of the
cases consisted of pebble grain expanded vinyl with a hard
plastic insert and a metal snap closure which secures the
sunglasses in the case. The court pointed to the durability and
protective quality of the sunglasses cases and noted that they
were not similar to cans, bottles, paper or polyethylene bags, or
paperboard boxes which 19 CFR 134.24 lists as examples of
disposable containers. The court found that the plaintiff failed
to establish that the sunglass cases are ordinarily discarded by
the consumer after any particular amount of usage or after any
particular event and determined that they are not disposable
containers exempt from the marking requirements under 19 CFR
134.24(c)(1).
We find that the jewelry boxes at issue are similar to the
Bausch and Lomb sunglass cases in durability and their protective
quality. Like the sunglass cases, the jewelry boxes are not
flimsy but have a substantial construction and can serve a
protective function for their contents. Similarly, it has not
been established that these jewelry boxes are ordinarily
discarded by the consumer. Although some consumers may discard
them, after purchase of the jewelry, we are not persuaded that
they are universally discarded or that they are intended to be
discarded after any particular amount of usage or after any
particular event. In fact, the boxes are well enough made that
it is likely that they will be used by some jewelry purchasers to
store their purchase or other jewelry items.
Based on the above considerations, we find that the jewelry
boxes are separate articles of commerce that must be individually
marked with their own country of origin.
You should be aware that section 134.14, Customs Regulations
(19 CFR 134.14), is applicable to the jewelry boxes. This
section requires that the marking include in addition to the name
of the country of origin, words or symbols clearly showing that
origin indicated is that of the jewelry box and not of the other
articles that may be sold or combined with it. This requirement
would be satisfied by a marking such as "Box made in ".
HOLDING:
The sample jewelry boxes are not disposable containers
within the meaning of 19 CFR 134.24 and as such they must be
individually marked with their own country of origin.
Sincerely,
John Durant, Director