CLA-2-06:RR:NC:2:231 J89071
Ms. Lisa Thomas
PBB Global Logistics, Inc.
670 Young Street
Tonawanda, NY 14150
RE: The tariff classification and country of origin marking of certain Canadian poinsettia plants, in soil, in plastic liners of Canadian origin, which have been placed in tin planter covers, or pails, of Indian origin, and then exported to the United States.
Dear Ms. Thomas:
In your letter, dated October 3, 2003, on behalf of your client, Fernlea Flowers, Delhi, Ontario, you requested a tariff classification and country of origin marking ruling on tin planter covers of Indian origin that are exported to Canada, used to pack poinsettia plants (seated in plastic receptacles) of Canadian origin, and then exported to the United States.
The sample is being returned as you have requested.
The goods in question are comprised of rooted, poinsettia plants that are packed with their soil in plastic liners, which themselves are seated in tin planter covers, or pails, of Indian origin. Both the poinsettia plants, themselves, and the plastic liners, are of Canadian origin. The plastic liners, which contain both the plants and their soil, are perforated to allow drainage of water. The plant covers, or pails, are the actual plant containers in which the plants are marketed to the consumer. The tin planter covers, or pails, are not designed for reuse. As they will be exposed to moisture, when the plants are watered, they will, in time, rust and become unusable. Both the planter covers, or pails, and plastic liners would be considered as packaging for the live poinsettia plants.
The applicable subheading for rooted, poinsettia plants, packed with their soil in plastic receptacles, in tin planter covers, or pails, will be 0602.90.6020, Harmonized Tariff Schedule of the United States (HTS), which provides for other live plants (including their roots), cuttings and slips; mushroom spawn, other, other, other, with soil attached to roots, poinsettias. The general rate of duty will be 1.9 percent ad valorem.
You state that the planter covers will be bar coded at the supplier’s facility, including with the legend, “Product of Canada,” and ask whether the proposed marking is acceptable for the potted poinsettias. Only an unmarked sample of the planting pot was submitted with your letter.
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 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 country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.
Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d) of the regulations, provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.
The poinsettia plants, themselves, are exempt from marking, as products listed in the so-called “J-list”, CR (19 CFR 134.33). However, when an article is exempted from marking by subpart D of this part, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of origin of the article whether or not the article is marked to indicate its country of origin, (19CFR 134.22(a)). Accordingly, if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the poinsettia plant by viewing the container in which it is packaged, the individual poinsettias would be excepted from marking under this provision.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Thomas P. Brady at 646-733-3030.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division