MAR-2 OT:RR:NC:N2:231
Ms. Darlene DiBernardo
A.N. Deringer, Inc.
173 West Service Road
Champlain, NY 12919
RE: THE COUNTRY OF ORIGIN MARKING OF LIVE PLANTS FROM CANADA; ARTICLE 509
Dear Ms. DiBernardo:
This is in response to your letter dated March 10, 2019 requesting a ruling on the marking of live plants on behalf of your client, Fernlea Flowers Ltd (Delhi, Ontario Canada). A marked sample or pictorial presentation was not submitted with your letter for review.
You have outlined a scenario in which you state that five different varieties of U.S.-origin live plants are exported to Canada where they remain to undergo further growth, nurtured by fertilizers and water. In Canada, the U.S.-origin plants will be combined with thirty different varieties of plants of Canadian origin, and then placed in containers and/or pots of an unspecified material. The combined total of thirty-five different varieties of plants are classifiable under heading 0602, Harmonized Tariff Schedule of 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.
You state that the plants from the United States and those from Canada are grown in tandem in a NAFTA country "Canada" prior to being returned into the United States. Since, "Canada" is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported plants are a good of a NAFTA country, and thus subject to the NAFTA marking requirements.
Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Part 102.11(a)(3) provides that for the purposes of determining the country of origin of imported goods other than textile and apparel products each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.
Part 102.20(b) section II: Chapters 6 through 14 states that, a change to heading 0601 through 0602 from any other heading, including another heading within that group. The products under issue would be classified in heading 0602. However, the aforesaid statement is preceded by a note that states, “notwithstanding the specific rules of this section, an agricultural or horticultural good grown in the territory of a country shall be treated as a good of that country even if grown from seed or bulbs, root stock, cuttings, slips or other live parts of plants, or from whole plants, imported from a foreign country.”
Based on the information above, the country of origin is determined to be Canada.
Additionally, 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 that 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).
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 Ekeng Manczuk at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division