CLA-2-06:OT:RR:NC:2:231
Ms. Darlene DiBernardo
A.N. Deringer, Inc.
173 West Service Road
Champlain, NY 12919
RE: The tariff classification of Live Plants with Decorative Planters from Canada
Dear Ms. DiBernardo:
In your letter received about March 6, 2018, you requested a tariff classification ruling on behalf of your client, Fernlea Flowers Ltd (Ontario, Canada).
The subject merchandise is described as “Plants Imported with Containers.” You provided samples that consists of four plastic standing containers of various sizes from China and one plastic hanging basket from China. The planters are said to contain mixed live plants with growing medium consisting of individual or combinations of the following plants: Asparagus Fern (A.densiflorus Sprengeri), Dipladenia (Mandevilla hybrida), Lamiastrum (Lamiastrum galeobdolon), Bird of Paradise (Strelitzia nicolai), Majesty Palm (Ravenea rivularis), Cordyline (Cordyline terminalis), Ficus (Ficus elastica decora), Ipomoea (Ipomoea batatas), and Hibiscus (Rosa sinesis).
You suggest that the plastic containers will be used primarily for the packaging and transportation of these plants, and that the essential character of these goods is imparted by the plants. We would disagree. The plastic planters are not the usual and ordinary containers for the packaging and shipping of garden and nursery plants, but decorative containers that are usually marketed and sold as planters. Accordingly, we would classify the live plants and the decorative planters separately.
The applicable subheading for the Asparagus Fern (A.densiflorus Sprengeri), Dipladenia (Mandevilla hybrida), Lamiastrum (Lamiastrum galeobdolon), and Ipomoea (Ipomoea batatas) plants will be 0602.90.3090, Harmonized Tariff Schedule of the United States (HTSUS) which provides for: Other live plants (including their roots), cuttings and slips; mushroom spawn: Other: Herbaceous perennials: Other: With soil attached to roots: Other. The rate of duty will be 1.4 percent ad valorem.
The applicable subheading for the Bird of Paradise (Strelitzia nicolai), Majesty Palm (Ravenea rivularis), Cordyline (Cordyline terminalis), Ficus (Ficus elastica decora), and Hibiscus (Rosa sinesis) will be 0602.90.6090, Harmonized Tariff Schedule of the United States (HTSUS) which provides for: Other live plants (including their roots), cuttings and slips; mushroom spawn: Other: Other: Other: With soil attached to their roots: Other. The rate of duty will be 1.9 percent ad valorem.
The applicable subheading for the Plastic Pots, Planters and Hanging Baskets will be 3924.90.5650, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Other household article: of plastics: Other: Other: Other. The general rate of duty will be 3.4 percent ad valorem. The use of these plastic pots, planters and hanging baskets satisfies a horticultural pursuit. As a result, these items will also be classified in the alternative subheading of 9817.00.5000, HTSUS, subject to certification. The conditional rate of duty will be free.
In your samples the plastic pots from China with “Made in China” molded into them are labeled and barcoded in Canada and state "Grown in/Cultive au: CAN". You ask whether the proposed marking is acceptable for the subject product in the condition that it will be imported into the United States.
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. Plants, shrubs and other nursery stock are listed in the J-List exceptions under section 134.33, Customs Regulation (19 CFR 134.33). Articles of a class or kind listed in the J-List are excepted from the requirements of country of origin marking in accordance with the provisions of section 304(a)(3)(J), Tariff Act of 1930, as amended (19 U.S.C. 1304(a)(3)(J). However, in the case of any article described in this list which is imported in a container, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents in accordance with the requirements of subpart C of Part 134, Customs Regulation (19CFR Part 134).
Customs has specifically ruled that "CAN" is not an acceptable abbreviation for Canada for country of origin marking purposes. Therefore we find that since the abbreviation “CAN” is not an acceptable country of origin marking, the marking of the labels affixed to the plastic pots is not in compliance with the requirements of 19 U.S.C. 1304. We suggest using “Grown in Canada” or “Product of Canada” as replacements.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This merchandise may be subject to regulations or restrictions administered by the U.S. Department of Agriculture, Animal and Plant Health Division (APHIS). You may contact that agency regarding possible applicable regulations at the following location:
U.S. Department of Agriculture
APHIS
Plant Protection and Quarantine Permit Unit
4700 River Road, Unit 136
Riverdale, MD 20737-1236
Telephone number: 877-770-5990
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
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 Ekeng Manczuk at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division