MAR-2-05 CO:R:C:V 734014 KG
Horace Katz
Floral Sales Corp.
P.O. Box 16-5342
Miami, Florida 33116-5342
RE: Country of origin marking of imported dried flowers; 19 CFR
134.33
Dear Mr. Katz:
This is in response to your letter of December 27, 1990,
requesting a country of origin ruling regarding imported dried
flowers. In accordance with 19 CFR 177.1, this ruling applies to
future or prospective transactions only; "that is, transactions
which are not already pending before a Customs Service office by
reason of arrival, entry, or otherwise."
FACTS:
You import uva stalks from Brazil and other countries. Uva
stalks are natural dried flowers. The country of origin marking
is on the outside of the carton or on the plastic bundles. A
photograph of the uva stalks was enclosed.
ISSUE:
Whether imported dried flowers are excepted from individual
country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(J) and
19 CFR 134.33 which except cut flowers from 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. 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 at 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). The outermost container in which the article
ordinarily reaches the ultimate purchaser must however, be marked
with the country of origin. 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. One category of
the articles of a class or kind included in the list, which is
set forth at 19 CFR 134.33 ("J-list) is cut flowers. The
outermost container in which J-list articles ordinarily reach the
ultimate purchasers must however, be marked with the country of
origin.
The question presented is whether the proviso which excepts
cut flowers from individual country of origin marking includes
dried flowers. Customs ruled in HQ 085336 (December 20, 1989),
that dried flowers would be classified under the Harmonized
Tariff Schedule of the United States ("HTSUS") under subheading
0603.90.00 as cut flowers. The subheading specifically includes
"fresh, dried, dyed, bleached, impregnated or otherwise prepared"
flowers. Although specific inclusion within the same subheading
of the HTSUS for classification purposes is not determinative, it
is a very persuasive factor. Dried flowers are fresh cut flowers
which are subjected to a drying process. Therefore, we conclude
that dried flowers are part of a kind or class of cut flowers.
Since the dried flowers are considered part of a kind or class of
cut flowers, pursuant to 19 U.S.C. 1304 and 19 CFR 134.33, the
dried flowers are excepted from individual country of origin
marking.
Consistent with 19 U.S.C. 1304 and 19 CFR 134.33, Customs
ruled in HQ 732822 (January 25, 1990), that fresh cut flowers are
excepted from individual marking and that "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." This conclusion was based on consideration of the
fact that fresh cut flowers imported in bulk and not pre-
packaged are very similar in nature to fresh fruit and vegetables
which are also included in the J-list and which are not required
to be individually marked. For instance, 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), and 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.
In HQ 085336, Customs ruled that dried flowers packaged in a
floral bouquet wrapped in tissue paper and bound with a paper-
covered wire tie were required to be marked with their country of
origin. That ruling is consistent with the analysis presented in
HQ 729857, which only dealt with fresh cut flowers which were not
pre-packaged. As long as the dried flowers involved in this case
are not sold to retail customers in a pre-packaged outermost
container, marking the country of origin of these flowers on the
shipping cartons in which the retailer receives them satisfies
the country of origin marking requirements.
HOLDING:
The dried flowers described above are considered part of a
kind or class of cut flowers, and pursuant to 19 U.S.C. 1304 and
19 CFR 134.33, they are excepted from individual country of
origin marking. As long as the dried flowers are not sold to
retail customers in a pre-packaged outermost container, marking
the country of origin of these flowers on the shipping cartons in
which the retailer receives them satisfies the country of origin
marking requirements.
Sincerely,
John Durant
Director,