MAR-2-05 CO:R:C:V 732822 KG
Ray Brush
Horticulture Consulting Services
P.O. Box 266
Madison, VA 22727
RE: Country of origin marking of imported flowers, plants growing
in plastic pots, scions and budwood sticks
Dear Mr. Brush:
This is in response to your letters of September 15, and
December 14, 1989, requesting a country of origin ruling
regarding imported cut flowers, plants and flower pots.
FACTS:
Your client plans to import cut flowers bundled and shipped
in shipping cartons, young plants in 2 1/2" or 4" plastic pots
shipped in a master carton which will be re-potted prior to
retail sale, various plants growing in 6" or larger plastic pots
and scions and budwood sticks in bundles of 25.
ISSUE:
What is the proper country of origin marking of imported cut
flowers, plants growing in plastic pots, scions and budwood
sticks?
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. The Court of
International Trade stated in Koru North America v. United
States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In
ascertaining what constitutes the country of origin under the
marking statute, a court must look at the sense in which the term
is used in the statute, giving reference to the purpose of the
particular legislation involved. The purpose of the marking
statute is outlined in United States v. Friedlaender & Co., 27
CCPA 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 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."
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.33, Customs Regulations (19 CFR
134.33), lists particular articles excepted from individual
country of origin marking in accordance with 19 U.S.C.
1304(a)(3)(J). Pursuant to 19 U.S.C. 1304(a)(3)(J), the
Secretary of the Treasury is authorized to exempt by regulation
any article from individual country of origin marking if the
article is of a kind or class that were imported in substantial
quantities during the five-year period immediately preceding
January 1, 1937, and were not required during such period to be
marked to indicate their origin. Two categories of articles
included in the list, which is set forth at 19 CFR 134.33 ("J-
list"), are cut flowers, and plants, shrubs and other nursery
stock. The outermost container in which J-list articles
ordinarily reach the ultimate purchasers must however, be marked
with the country of origin.
If an imported J-list article is intended to be repacked in
a new container for sale to an ultimate purchaser after its
release from Customs custody, or if the district director having
custody of the article has reason to believe such article will be
repacked after its release, the importer shall certify to the
district director that (1) if the importer does the repacking,
the new container shall be marked to indicate the country of
origin of the article; or (2) if the article is intended to be
sold or transferred to a subsequent purchaser or repacker, the
importer shall notify such purchaser or transferee, in writing,
at the time of sale or transfer, that any repacking for the
article must be marked with the country of origin. See 19 CFR
134.25.
Because cut flowers, plants and other nursery stock are
included on the J-list, these imported articles are not required
to be individually marked with the country of origin. However,
the outermost container in which the imported articles reach the
ultimate purchaser must be marked with the country of origin of
the article.
Assuming that the fresh cut flowers are imported in bulk and
not pre-packaged, they are very similar in nature to fresh fruit
and vegetables which are also included in the J-list. Customs
has ruled that marking the cartons in which fresh bananas are
received at a grocery store satisfies the country of origin
marking requirements. ORR ruling 749-70 (July 21, 1970).
Customs also held that marking the wooden shipping boxes in which
bundles of fresh asparagus are packed satisfies the country of
origin marking requirements. HQ 729857 (February 17, 1987).
Fresh cut flowers are similar to fresh produce because both are
presented to retail customers in bulk, sold to retail customers
individually in whatever quantity desired and generally, neither
is sold to retail customers in a pre-packaged outermost
container. Therefore, as long as the fresh cut flowers are not
sold to retail customers in a pre-packaged outermost container,
marking the country of origin of imported fresh cut flowers on
the shipping cartons in which the florists receive them satisfies
the country of origin marking requirements.
The plants which are intended for retail sale are contained
in plastic pots. Since the pot is the outermost container in
which the ultimate purchaser would ordinarily receive the plant,
the pot must be marked with the country of origin of the plant.
The young plants which will be re-potted prior to retail
sale trigger the requirements of 19 CFR 134.25 and accordingly,
the importer will be required to certify at the time of
importation that once re-potted, the plastic pots in which the
plants are sold will be properly marked with the country of
origin of the plant.
A scion is a shoot or twig, especially one cut for grafting
or planting. The scions and budwood sticks are also included on
the J-list and excepted from individual country of origin marking
pursuant to 19 CFR 134.33 and need only be marked with the
country of origin on the outermost container in which the
ultimate purchaser will ordinarily receive them. Marking the
country of origin of the outermost container of the scions and
budwood sticks which complies with the methods and manner of
marking provided for in 19 CFR 134.41 will satisfy the country of
origin marking requirements.
Section 134.41(b), Customs Regulations (19 CFR 134.41(b)),
requires that the degree of permanence of the marking should be
at least sufficient to insure that in any reasonably foreseeable
circumstances, the marking shall remain on the article or its
container until it reaches the ultimate purchaser unless it is
deliberately removed. The marking must survive normal
distribution and store handling.
Because all the above imported items are on the J-list,
marking the country of origin on plant labels will not be
necessary so long as the outermost container in which the
imported articles ordinarily reach the ultimate purchaser are
legibly and securely marked.
HOLDING:
Imported fresh cut flowers must be marked with the country
of origin on the shipping cartons. Imported plants must be
marked with the country of origin on the plastic pots in which
the ultimate purchaser will ordinarily receive them.
If the plants will be re-potted prior to sale to the
ultimate purchaser, the importer must certify, at the time of
importation, in accordance with 19 CFR 134.25 that if he does the
re-potting, he will mark the new pot with the country of origin
of the plants. If someone else will be re-potting the plants,
the importer must certify that he will notify the subsequent
purchaser or transferee in writing, at the time of the sale or
transfer to a subsequent purchaser or transferee, that any new
containers for the plants must be marked with the country of
origin of the plants.
The bundles of scions and budwood sticks must be marked with
the country of origin on the outermost container which complies
with 19 CFR 134.41(b).
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch
cc: Assistant Area Director, NIS
845593