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HQ 733274

June 19, 1990

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.


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.


Must the boxes themselves be separately marked to indicate their origin to comply with the country of origin marking requirements?


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
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
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).


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.


John Durant, Director
Commercial Rulings Division

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