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