CLA-2 OT:RR:CTF:TCM H016419 KSH
Ms. Tara Tompkins
Eighteen Karat International
5292 – 272nd Street
Langley, BC
Canada V4W 1S3
RE: Country of origin marking of Delonix Pods, Oroxylum Pods and Pandanus Fruit.
Dear Ms. Tompkins:
This is in reference to your letter, dated July 30, 2007, in which you have requested a binding ruling concerning the country of origin marking of Delonix pods, Oroxylum pods and Pandanus fruit from China. Your request has been forwarded by the National Commodity Specialist Division in New York to this office for a response.
FACTS:
The merchandise at issue is imported from China. The three samples are identified as a Delonix pod, a Oroxylum pod and Pandanus fruit. The Delonix pod (Delonix Regia) is a natural seed casing dropped by the tropical Royal Poinciana tree. It measures approximately 2 inches wide by 15 inches long and resembles an oversized bean pod which has been split in half.
The Oroxylum pod (Oroxylum Indicum) is a natural seed casing dropped by the Tree of Damocles. It is similar to the Delonix pod, but it measures approximately 2 5/8 inches wide by 19 inches long.
The Pandanus fruit is from a Pandanus tree. It is a brown, woody, ovoid object that measures approximately 4 ½ inches by 6 inches. It resembles a pineapple or grenade.
The articles will be imported bulk-packed in cardboard shipping boxes. No retail packaging is included since the goods are said to be sold to retailers for open display in baskets or on shelves. You state you will furnish each retailer with a supply of brochures for display and distribution to consumers. The brochures provide basic information on the products and their origin.
ISSUE:
Whether the articles are excepted from country of origin marking.
LAW AND ANALYSIS:
The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its 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 and Border Protection (CBP) Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Congressional intent in enacting 19 U.S.C. 1304 was "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." United States v. Friedlaender & Co. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).
Under the authority provided in 19 U.S.C. 1304(a)(3)(J), the Secretary of the Treasury has excepted from country of origin marking the articles listed in section 134.33, CBP Regulations (19 CFR 134.33). This list, known as the "J-List," includes "natural products, such as vegetables, fruits, nuts, berries...in their natural state or not advanced in any matter further than is necessary for their safe transportation." However, pursuant to 19 U.S.C. 1304(b), whenever an article is excepted from marking, "the immediate container, if any, of such article, or such other container or containers of such article as may be prescribed by the Secretary of the Treasury, shall be marked... ." The J-List reflects a recognition that, due to the very nature of some articles, the articles themselves are not susceptible to marking, but that this quality in no way diminishes the requirement of 19 U.S.C. 1304, that the ultimate purchaser of an imported article be informed of its country of origin. The requirement is satisfied by marking the container in which the imported article reaches the ultimate purchaser.
Therefore, pursuant to 19 U.S.C. 1304(b) and 19 CFR 134.33, the outermost container of the Delonix pods, Oroxylum pods and Pandanus fruit is required to be marked with the country of origin of the foreign contents. This has been the position of CBP for some time with regard to natural products and other fresh produce items. See, Headquarters Ruling Letter (HQ) 733798, dated April 11, 1991, and HQ 734014, dated April 26, 1991.
In 1983, CBP implemented amendments to 19 CFR Part 134 that
established the responsibility of importers to mark the containers of J-List articles repackaged after importation, or in the alternative, to give notice to a subsequent purchaser or repacker of his obligation to properly mark imported articles that are repackaged. See, 19 CFR 134.25; Treasury Decision (T.D.) 83-155, issued October 24, 1983. Specifically, 19 CFR 134.25 provides that if a J-List article is intended to be repacked in new containers for sale to an ultimate purchaser after release from CBP custody, or if the port director, having custody of the article, has reason to believe that such article will be repacked after its release, the importer shall certify to the port director that: 1) if the importer does the repacking, the new container shall be marked to indicate the origin of its contents; or that 2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify the purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements.
Similarly, section 134.32(d), CBP Regulations (19 CFR 134.32(d)), provides an exception to the country of origin marking requirements for "[a]rticles for which the marking of the containers will reasonably indicate the origin of the articles." Articles for which the marking of the containers will reasonably indicate their origin are excepted from individual marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). This exception applies only if the article in question is imported in a properly marked container and CBP is satisfied that the article will reach the ultimate purchaser in this original marked unopened container. Relevant factors regarding whether an article is likely to remain in its original container include the chain of distribution, the type of container, and the nature of the article.
When the imported article is to be repackaged and the container in which an article is to be repackaged after release from CBP custody will be marked with the article’s proper country of origin, the provisions of 19 CFR 134.34 should be used. Section 134.34, CBP Regulations (19 CFR 134.34), provides that, at the discretion of the port director, an exception from individual marking may be authorized for imported articles which are to be repacked after release from CBP custody when: (1) the containers in which the articles are repacked will indicate the origin of the articles to the ultimate purchaser in the U.S. and (2) the importer arranges for supervision of the marking of the containers by CBP officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.
You have stated that there will be no outermost container in which the subject merchandise will reach the ultimate purchaser as the Delonix pods, Oroxylum pods and Pandanus fruit will be sold in open display on shelves or in baskets. In HQ 734290, dated December 24, 1991, we stated that open bins or displays of bulk products are not considered containers for the purposes of 19 CFR 134.25. See also HQ 733798, dated April 11, 1991. The baskets or open displays in which the Delonix pods, Oroxylum pods and Pandanus fruit will be sold are akin to open bins or displays of bulk products. Accordingly, the Delonix pods, Oroxylum pods and Pandanus fruit can be excepted from marking provided the requirements of 19 CFR 134.32(d) and 19 CFR 134.34 are followed, when applicable.
HOLDING:
In accordance with Part 134 of the CBP Regulations, the pods and fruit need not be marked. As long as the Delonix pods, Oroxylum pods and Pandanus fruit are not sold to retail costumers in a pre-packaged outermost container, marking the country of origin on the shipping cartons in which the retailer receives them satisfies the country of origin marking requirements.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch