MAR-2-05 CO:R:C:V 734495 ER
Joel R. Junker, Esq.
Graham & Dunn
1420 Fifth Avenue, 33rd Floor
Seattle, Washington 98101-2390
RE: Country of Origin Marking of Decorative Tins Imported Empty;
Containers; Ultimate Purchaser; 19 CFR 134.23; 19 CFR
134.24; C.S.D. 87-1; C.S.D. 88-28; HQ 734190; HQ 733675; HQ
730530; HQ 729476; HQ 733716; HQ 731661; HQ 731318;
HQ 729943.
Dear Mr. Junker:
This is in response to your letter dated February 7, 1992,
on behalf of your client, VinCenzo International Corporation
("VinCenzo"), 770 North Halsted Street, Suite 205, Chicago,
Illinois 60622, in which you request a ruling regarding the
country of origin marking requirements for imported decorative
tins.
FACTS:
Decorative tins are imported empty and are sold by VinCenzo
to distributors in the U.S. who in turn sell the tins to a
manufacturing company. The manufacturing company fills the
decorative tins with different items it produces and sells the
items in the tins to retail markets as gift packages. Examples
of items that fill the tins are Christmas cookies, other snack
food products, hard candy, car wax and plaster of paris for
handicrafts.
You state that VinCenzo receives orders for decorative tins
that specify or contemplate the items that will fill the tins.
The transaction invoices for the imported tins specify the
product of filling for which the tins are designed and decorated.
VinCenzo does not import or sell the decorative tins for retail
sale alone without filling, either for its own account or by
others.
Imported tins are shipped in multiple units in containers
that are marked with the country of origin. Photographs of
Christmas cookie tins were submitted.
ISSUE:
Whether decorative tins, imported empty to be filled in the
U.S., are reusable containers 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. Part 134, Customs
Regulations (19 CFR Part 134), implements the country of origin
marking requirements and exceptions of 19 U.S.C. 1304.
The purpose of the marking statute is set forth in United
States v. Friedlaender & Co., 27 C.C.P.A. 297, 302, C.A.D. 104
(1940), where the court stated that Congress intended that the
ultimate purchaser should be able to know by an inspection of the
marking on imported goods the country of which the goods are a
product. The purpose is to mark the goods so that at the time of
purchase, the 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.
In order to determine whether the decorative tins are
excepted from country of origin marking requirements, it is first
necessary to establish whether the tins are disposable or
reusable containers as well as to ascertain the identity of the
ultimate purchaser of the tins within the meaning of 19 U.S.C.
1304.
Disposable containers are defined as the usual ordinary
types 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)).
A reusable container is one which is designed for or is
capable of reuse after the contents have been consumed. If these
containers have a lasting value or decorative use (e.g. fancy
cologne bottles reusable as flower vases and mustard jars
reusable as beer mugs) they must be individually marked with
their own country of origin. See section 134.23, Customs
Regulations (19 CFR 134.23). The consumer purchasing the
contents is considered to be the ultimate purchaser of the
containers and the containers.
In C.S.D. 87-1 (October 10, 1986) Customs considered whether
imported plastic shopping bags, given by retail stores to their
customers with the purchase of items, were subject to the country
of origin marking requirements of 19 U.S.C. 1304. In that case
Customs found that the "ultimate purchaser" of the plastic
shopping bags was not the retail store, but its customer who was
the user of the bags and the last to receive them in the form in
which they were imported.
Citing to C.S.D. 87-1, Customs in response to a request for
internal advice (HQ 734190 (November 18, 1991)) ruled that vinyl
bags imported empty to be filled with durable goods constitute
reusable containers subject to individual country of origin
marking. There, Customs noted that pursuant to 19 CFR 134.23,
containers are considered reusable if they are either designed
for or capable of reuse after the contents have been consumed, or
impart the essential character to the whole importation. Finding
the vinyl bags to be of durable nature and capable of repetitive
use and distinguishable from the "flimsy" bags ordinarily
discarded after the contents are consumed, Customs directed that
the vinyl bags be individually marked to indicate the country of
their own origin with a marking such as, "Bag Made in (name of
country)."
Applying these considerations to the decorative tins at
issue, Customs is of the opinion that the subject tins are
designed for and capable of reuse. Therefore, the consumer
purchasing the decorative tins and their contents is the ultimate
purchaser and the tins are not excepted from individual marking
pursuant to 19 CFR 134.24 and 19 U.S.C. 1304(a)(3)(D) and must be
conspicuously marked to indicate their own country of origin.
The type of tins depicted in the submitted photographs,
decorative Christmas tins, are of sturdy construction and are
frequently saved after their contents are depleted to be used
again as attractive and festive containers. These tins are
practical for reuse since they are easily opened and resealed.
Furthermore, they have lasting and decorative value, features
which distinguish the tins from the crayon boxes in HQ 729943
(November 13, 1986) and vinyl pill cases in HQ 731318 (August 12,
1988), two rulings you cite to as support for your contention
that the subject tins are disposable. The fact that the tins
which are the subject of this ruling request are not also sold
empty and separately from their contents is by no means
dispositive of whether they are or are not disposable. More
relevant to the determination that they are designed for reuse is
the fact that the tins qualify as separate articles of commerce
and that a market exists for such empty decorative tins. (See,
HQ 733675 (May 16, 1991)).
Your attempt to distinguish the instant containers from the
reusable containers referenced in 19 CFR 134.23(b) is
inappropriate under the circumstances since the decorative tins
are not imported at the same time and entered with the articles
that they are designed to hold. Hence your argument that the
decorative tins do not impart the essential character to the
whole importation is misplaced since the containers are the only
items being imported at one time. 19 CFR 134.23(b) refers to
containers or holders which give the whole importation its
essential character, as described in General Rule of
Interpretation 5(a) (19 U.S.C. 1202), and which must be
individually marked to indicate their own origin.
You argue that unlike the polyethylene bags in HQ 733675
(May 16, 1991), in the instant case the tin is provided as
neither a gift nor a convenience, but as something more, with the
cost included in the price of the retail item(s) inside.
However, you do not explain what that "something more" is or why
a consumer would opt to purchase snack food products, hard candy,
car wax, plaster of paris, cookies, (to reiterate your list of
examples), etc. in a more expensive container and pay more than
he would were he to have purchased the same goods without a
container or in packaging that is clearly disposable and less
expensive, e.g. plastic bags or wrap, ordinary cardboard boxes,
etc. Thus, Customs does not agree that the contents of the tin
are the sole object for the ultimate purchase. Rather a decision
to acquire the tin must also factor into the ultimate purchaser's
decision buy.
Accordingly, the marking requirements of section 134.23(a)
are applicable and the decorative tins must be individually
marked with their own country of origin. An appropriate marking
for the tins would be "Container made in ", or similar
language.
HOLDING:
The decorative tins imported empty to be filled with
merchandise constitute reusable containers for purposes of the
country of origin marking requirements of 19 U.S.C. 1304 and 19
CFR Part 134. Accordingly, the tins must be individually and
conspicuously marked "Container made in (name of country)" (or
other similar marking).
Sincerely,
John Durant, Director