MAR-2-05 CO:R:C:V 732823 NL

John B. Rehm, Esq.
Munford Page Hall, II, Esq.
Dorsey & Whitney
1330 Connecticut Avenue, N.W.,
Washington, D.C. 20036

RE: Country of Origin Marking of Shoe Boxes

Dear Sirs:

This is in response to your submission of October 17, 1989, in which you request a ruling on behalf of your client that imported cardboard shoe boxes must be marked separately with their country of origin when used to package U.S. origin shoes.

FACTS:

Your client is a domestic producer of cardboard shoe boxes. According to your submission, shoe boxes are imported from Canada and sold to domestic shoe manufacturers. The boxes are imported as flats, made up by the shoe manufacturers, and used to package shoes for retail sale. We assume, and you have not alleged otherwise, that the shoes in question are of U.S. origin. You state that the shoe boxes often bear the marking "Made in U.S.A.", or words to similar effect which refer to the shoe contents. You state that the boxes also bear the trade names of the domestic manufacturers. Finally, you state that the individual shoe boxes have no marking indicating their Canadian origin.

Samples were submitted both of boxes without country of origin marking and of boxes marked as you contend is required by section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), i.e., "Box made in Canada". In addition, you submitted a survey report entitled "Final Report - Shoebox Usage Study" (Report). Based upon a telephone survey of 400 respondents the Report projected that a majority of shoe purchasers (84 % in the survey group) utilize shoe boxes for a secondary purpose such as storage of photographs, records, bills, and other personal items including shoes.

It is your position that for purposes of country of origin marking the purchaser of boxed shoes is the ultimate purchaser of the cardboard shoe boxes, which you argue are separate articles of commerce from their shoe contents. From this you conclude that the shoe boxes are not subject to the provisions of Part 134, Subpart C, Customs Regulations governing the country of origin marking of containers, but rather that the boxes when used -2-

to package shoes must be individually marked with their country of origin as separate imported articles. In the alternative, it is your position that if the shoe boxes are subject to the country of origin marking requirements for containers, they should be regarded as reusable containers and accordingly marked individually with their country of origin.

Finally, you contend that the shoe boxes may not be excepted from country of origin marking if they bear any marking or symbol which suggests that their origin is the U.S. You urge that 19 CFR 134.36(b) and 19 CFR 134.46 be construed to require that the name of the country of origin of the boxes appear in close proximity to the words or symbols which, you argue, suggest that the shoe boxes originate in the U.S.

ISSUES:

Are imported cardboard shoe boxes used to package U.S. origin shoes required to be individually marked with their country of origin? Do the requirements of 19 CFR 134.36(b) and 19 CFR 134.46 apply to such boxes?

LAW & 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. The purpose of the marking statute is set forth in United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940), in which the court stated that "Congress intended 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 a 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The disposition of this ruling request depends upon the outcome of two related inquiries. First, are the cardboard shoe boxes disposable containers? Second, who is the ultimate purchaser of the boxes within the meaning of 19 U.S.C. 1304? Upon consideration of the arguments and evidence presented, taking into account the language and purposes of the statute and regulations, and having reviewed our prior determinations, it is -3-

our opinion that imported cardboard shoe boxes are disposable containers. Cardboard shoe boxes imported to be filled by domestic shoe manufacturers are excepted from individual country of origin marking pursuant to 19 CFR 134.24(c)(1). That section provides that persons or firms who import disposable containers in order to fill them with products they sell are the ultimate purchasers of the containers. Such containers are excepted from country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D), although at the time of importation their outside wrappings or packaging must be marked with the containers' country of origin.

Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines "ultimate purchaser" as generally the last person in the U.S. who will receive the article in the form in which it was imported. For example, Customs determined in HQ 729239 (January 3, 1986) that the ultimate purchaser of disposable bags is the company that buys and uses them to package its goods, even if the company is not the importer. After packaging, the disposable container becomes an integral part of the article with which it is packaged, and is no longer a separate article of commerce. As such, the packager is the last person who receives the disposable container in the form in which it was imported.

Subpart C of 19 CFR Part 134, which provides for the country of origin marking of containers, recognizes two broad categories of containers. Section 134.23 specifies that reusable containers, which must be individually marked with their country of origin, are either: 1) those usual and ordinary containers designed for or capable of reuse after their contents have been consumed, such as heavy duty steel drums, tanks, and other similar shipping, storage, or transportation containers; or 2) containers which give the whole importation its essential character, having lasting value or decorative use. Section 134.24 provides that disposable containers are the usual and 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. Disposable containers which are packed and sold in multiple units may be marked to indicate their country of origin on the outermost container which reaches the ultimate purchaser.

A review of our previous rulings in this area leads to the conclusion that cardboard shoe boxes fall squarely within the category of disposable containers. We have previously ruled that plastic boxes with separate tops and bottoms used to store U.S.- origin crayons were disposable containers. HQ 729943 (November 13, 1986). Similarly, in HQ 731318 (August 12, 1988) we ruled that vinyl cases for birth control pills are disposable containers within the meaning of 19 CFR 134.24. Finally, in HQ 729817 (November 13, 1986), we ruled that cardboard cartons to be packed in the U.S. with bottles of wine cooler are disposable -4-

containers.

HQ 729476 (October 10, 1986), which you cited in your submission, is readily distinguishable. In that ruling we determined that the ultimate purchaser of a plastic shopping bag was the retail customer of the store which provided it, since the bag was durable and capable of reuse. We noted in that ruling that, unlike the shoe boxes, the plastic bag was not the primary container for the merchandise sold by the store, and was provided free of charge for the convenience of the store's customers. We have consistently ruled that when an article is provided as a gift or convenience, the donee or recipient is the ultimate purchaser and the article must be individually marked with its country of origin. See, 19 CFR 134.1(d)(4); C.S.D. 89-89 (March 18, 1989); HQ 729800 (October 10, 1989). The shoe boxes, by contrast, are the primary containers for the shoes, and it may reasonably be assumed that the cost of the boxes is included in the price of the shoes. The boxes are not provided merely as a convenience to the shoe purchaser, but are the usual and ordinary container of the shoes. For the same reason, your reliance upon HQ 709207 (July 10, 1978) is misplaced, since the plastic bags addressed there also were given away free of charge.

Also, we do not find your empirical arguments that shoe boxes are reusable, and qualify as separate articles of commerce persuasive. In construing the container provisions of subpart C of 19 CFR Part 134, we are guided by the regulation's terms "usual", "ordinary", "designed for" and "not designed for". These terms indicate that we are to take into account the ordinary purpose and capability for which the container is created. Absent compelling reasons not shown here, we are directed by subpart C of 19 CFR Part 134 to treat a cardboard box as a container. It has not been demonstrated, for example, that there is a market for shoe boxes beyond shoe manufacturers. It has not been demonstrated that a shoe purchaser would refuse to buy a pair of shoes on the basis that the box in which it is sold is of foreign origin. Finally, the Report submitted addresses entirely the secondary uses of shoe boxes, and cannot overcome the plain fact that the normal and primary purpose of shoe boxes is to contain shoes. We find the fact that a shoe box may be reused for other purposes fortuitous, and have not been presented with evidence of the kind which would indicate that a shoe box is an article sought out by ultimate purchasers in its own right. We find that the cardboard shoe boxes are containers subject to the country of origin marking requirements for containers set forth in 19 CFR Part 134, subpart C.

We note that General Rule of Interpretation (GRI) 5(b) of the Harmonized Tariff Schedule of the United States (HTSUS) provides that packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing the goods. This -5-

provision does not apply when the packing materials or containers are "clearly suitable for repetitive use". We take this rule in this case as further indication that for Customs purposes a shoe box which is normally used to package shoes is not, when it reaches the ultimate purchaser of the shoes, an article of commerce separate from its contents.

As is evident from the foregoing discussion, we are also not persuaded that shoe boxes are reusable containers. It has not been demonstrated that, in the words of GRI 5(b), HTSUS, the shoe boxes are "clearly suitable for repetitive use." Among the examples of disposable containers set forth in 19 CFR 134.24 are "paperboard boxes and similar containers". Our previous rulings cited above, that plastic containers, pill boxes and cardboard cartons for wine coolers are disposable containers excepted from individual country of origin marking, are consistent with this approach.

Your final contention is that 19 CFR 134.36(b) and 19 CFR 134.46 require that the country of origin of the shoe box appear in close proximity to any words or symbols which indicate a country other than the country of origin of the shoe box. The purpose of these provisions is to prevent any misleading or possible deception of ultimate purchasers as to the country of origin of imported articles.

Section 134.36(b) provides that an exception from marking shall not apply to any article or retail container bearing any words, letters, names, or symbols described in section 134.46 which imply that an article was made or produced in a country other than the country of origin. Facially, the sample boxes which you contend are improperly marked present this issue. The box for Bass shoes bears the address of the shoe manufacturer and the words "Made in U.S.A.". The box for Sebago shoes bears no marking other than the word "Sebago" which, arguably, is also the kind of geographic name described in section 134.46. However, upon consideration of our prior rulings on this point and examination of the sample boxes, it is our opinion that the markings on the boxes imply that the shoes to be placed in the boxes and not the boxes themselves were made in the U.S. Therefore, an exception from individual country of origin marking for these shoe boxes is not precluded by section 134.36(b).

In ruling 731388 (June 11, 1988), we considered whether potato bags from Canada imported to pack U.S.- grown potatoes were required to be individually marked with their country of origin. The bags were marked with the U.S. address of the bag manufacturer as well as the U.S. address of the potato producer. We determined that the presence of the U.S. address of the maker of the Canadian-origin bags tended to imply that the bags were of U.S. origin, and that pursuant to section 134.36(b) the bags could not be excepted from individual country of origin marking. -6-

We stated that had the address of the produce company only appeared on the bags these words would have implied only that the potatoes were of U.S. origin. Similarly here, where the names and addresses of the U.S. shoe manufacturers are the only markings on the shoe boxes, there can be no reasonable inference that the addresses suggest the origin of the box; they plainly refer to the shoe manufacturer. In HQ 729817 supra, we ruled that there was no inconsistency between a U.S. marking on an imported disposable container for a wine cooler and the U.S. origin of the wine. Therefore, the disposable container did not have to be marked with its own country of origin. Similarly, the purchaser of shoes packaged in a disposable container would fully expect the container to bear information concerning its contents, and there is no possibility of misleading the ultimate purchaser as to the country of origin of the shoes. Accordingly, we find that section 134.36(b) does not apply to preclude the granting of an exception from individual country of origin marking for the shoe boxes as disposable containers pursuant to 19 CFR 134.24(c)(1). Since no country of origin marking of the box is required, the provisions of 19 CFR 134.46 do not apply.

HOLDING:

Cardboard shoe boxes imported by shoe manufacturers to package domestic origin shoes are disposable containers excepted from individual country of origin marking pursuant to 19 CFR 134.24(c)(1). 19 CFR 134.36(b) does not apply to such shoe boxes to preclude the application of the exception or to require additional country of origin marking.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch