HQ 0734495 - 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. - United States International Trade Commision Rulings

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HQ 734495
April 21, 1992

MAR-2-05 CO:R:C:V 734495 ER

CATEGORY: MARKING

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
Commercial Rulings Division

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