MAR-2-05 CO:R:C:V 733274 NL
Peter Jay Baskin, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004
RE: Wooden Cigar Boxes Imported to be Filled
Dear Mr. Baskin:
This is in response to your letter of April 16, 1989, in
which your request a ruling that wooden cigar boxes imported to
be filled with cigars may be excepted from the country of origin
marking requirements of 19 U.S.C. 1304.
FACTS:
Your client, Davidoff of Geneva (CT) Inc., imports premium
cigars from the Dominican Republic. Separately, Davidoff imports
wooden boxes and cigar packing materials from Switzerland. The
boxes are then packed with the cigars in the U.S.
The boxes are of substantial construction and closely
fitted. The wood is sanded smooth. It is evident that the boxes
are of the type familiar to cigar smokers as the containers in
which cigars are sold. Davidoff represents that the boxes are
of a sturdiness which is necessary to preserve the product prior
to sale and consumption. Customs also takes notice of the fact
that the fine finish and quality of the box and packing materials
is commensurate with the premium nature of the Davidoff cigar
product.
Davidoff proposes that at the time of importation the bulk
packages containing the boxes and packing materials would
indicate that they are made in Switzerland. Each box and cigar
tube would bear the Davidoff name and the marking "Made by Hand
in the Dominican Republic", referring to the cigars to be placed
in the tubes and boxes after importation. Samples were submitted
for examination.
ISSUE:
Must the boxes themselves be separately marked to indicate
their origin to comply with the country of origin marking
requirements?
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LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), requires that, unless excepted, every article of foreign
origin (or its container) must be legibly, permanently, and
conspicuously marked to indicate the English name of its country
of origin to the ultimate purchaser in the U.S. The purpose of
this provision is to require the identification of foreign 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, 302, C.A.D. 104
(1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304.
The "ultimate purchaser" of an article for purposes of 19
U.S.C. 1304 is defined as "generally the last person in the U.S.
who will receive the article in the form in which it was
imported." 19 CFR 134.1(d). In this case, the ultimate
purchaser of the cigars is the retail buyer.
Cigars are excepted from country of origin marking pursuant
to 19 CFR 134.33. This provision consists of a list of articles,
authorized to be established by the Secretary of the Treasury
pursuant to 19 U.S.C. 1304(a)(3)(J), imported in substantial
quantities during the five-year period preceding July 1, 1937,
and at that time not generally required to be marked. This list
is known as the "J-List". If an article excepted from marking
under the J-List is to be repacked in new containers by the
importer after importation for sale to an ultimate purchaser, 19
CFR 134.25 requires the importer to certify that such containers
be marked with the country of origin of the article. In
accordance with the foregoing, the importer in this case, by
repacking the cigars in the marked wooden boxes and executing the
above-referenced certificate, would be in compliance with the
country of origin marking requirements with respect to the
cigars.
According to the facts presented, each wooden box will be
marked at the time of importation with the country of origin of
the cigars which are to fill it. However, the outermost
container of the bulk boxes at the time of importation will
indicate the Swiss origin of the boxes. This situation is
addressed in 19 CFR 134.24(c), which provides that when
containers ordinarily discarded after use are imported to be
filled with articles for sale, the importer is the "ultimate
purchaser" of the containers, which may be excepted from country
of origin marking pursuant to 19 CFR 134.32(d). Only the
outermost containers in which the disposable containers are
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imported must be marked with country of origin. It is our
opinion that the wooden cigar boxes are the type of container
referenced in 19 CFR 134.24(c), that Davidoff is their ultimate
purchaser, and that the proposal to mark the containers holding
the cigar boxes at the time of importation conforms to the
requirements of 19 CFR 134.32(d). The boxes themselves may be
excepted from country of origin marking.
We find that the boxes may be excepted from country of
origin marking despite the requirement of 19 CFR 134.36(b), which
provides that an article or container may not be excepted from
marking if it bears any words, letters, or names which imply that
an article was made or produced in a country other than the
country of origin. Here, the potential difficulty is the marking
"Made by Hand in the Dominican Republic". However, it is our
opinion that this marking, which follows the brand name of the
cigars, refers unambiguously to the cigar contents of the boxes,
and not to the boxes themselves. Thus, 19 CFR 134.36(b) does not
preclude the exception of the cigar boxes from country of origin
marking.
It is noted that the cigar boxes are of a notably sturdy
construction and smooth finish, suggesting, perhaps, a degree of
permanence and durability which is not consistent with other
types of disposable containers specified in 19 CFR Part 134,
i.e., cans, bottles, paper or polyethylene bags, and paperboard
boxes. However, it is our view that the cigar boxes fall within
the class of containers not designed for reuse and thus excepted
from country of origin marking. The types of reusable containers
described at 19 CFR 134.23 fall into two classes: articles such
as steel drums, tanks, and other storage or transportation
containers; and containers or holders which have a lasting value
or decorative use, such as decorative mustard jars, shaving mugs
and cologne bottles. The cigar boxes, by contrast, are clearly
designed for the single purpose of containing and preserving
cigars, and not either for multiple uses with the same article or
for uses after depletion of its contents. We are persuaded by
Davidoff's contention that the boxes are of a degree of
sturdiness which is appropriate to the fragile nature of its
prospective contents. There may be some uses to which these
boxes are put after the cigars have been used, but they do not
relate to the purpose for which they were built and imported - to
contain cigars. Customs addressed a similar question in HQ
732823 (January 19, 1990), ruling that cardboard shoe boxes,
imported to hold domestic origin shoes, are the type of
disposable container referenced by 19 CFR 134.24, despite
evidence that such boxes are used for other purposes. In our
view such uses were secondary and fugitive, and did not change
the status of the containers as disposable carboard boxes for
shoes. We find that the same reasoning applies here.
In the alternative, it is requested that Customs consider
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whether the boxes may be excepted from country of origin marking
pursuant to 19 U.S.C. 1304(a)(3)(H), as implemented by 19 CFR
134.32(h), which provides an exception from country of origin
marking for articles for which the ultimate purchaser must
necessarily know the origin of the articles by reason of the
circumstances of their importation or by reason of the character
of the articles. Since you have not offered a description of the
circumstances under which the boxes are to be imported, we are
unable to consider this exception. However, it is noted that if
this exception were found to apply, not only the boxes, but also
the container(s) in which they were imported would be excepted
from country of origin marking. See, 19 U.S.C. 1304(b).
HOLDING:
The importer of wooden cigar boxes who then fills them with
cigars is the ultimate purchaser of the boxes within the meaning
of 19 CFR 134.24(1). The boxes may be excepted from country of
origin marking pursuant to 19 CFR 134.32(d). The marking "Made
by Hand in the Dominican Republic" appearing on the boxes plainly
refers to their cigar contents, and not to the boxes.
Sincerely,
John Durant, Director
Commercial Rulings Division