HQ 0732822 - Country of origin marking of imported flowers, plants growing in plastic pots, scions and budwood sticks - United States International Trade Commision Rulings

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HQ 732822
January 25, 1990

MAR-2-05 CO:R:C:V 732822 KG

CATEGORY: MARKING

Ray Brush
Horticulture Consulting Services
P.O. Box 266
Madison, VA 22727

RE: Country of origin marking of imported flowers, plants growing in plastic pots, scions and budwood sticks

Dear Mr. Brush:

This is in response to your letters of September 15, and December 14, 1989, requesting a country of origin ruling regarding imported cut flowers, plants and flower pots.

FACTS:

Your client plans to import cut flowers bundled and shipped in shipping cartons, young plants in 2 1/2" or 4" plastic pots shipped in a master carton which will be re-potted prior to retail sale, various plants growing in 6" or larger plastic pots and scions and budwood sticks in bundles of 25.

ISSUE:

What is the proper country of origin marking of imported cut flowers, plants growing in plastic pots, scions and budwood sticks?

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, 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). 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. Two categories of articles included in the list, which is set forth at 19 CFR 134.33 ("J- list"), are cut flowers, and plants, shrubs and other nursery stock. The outermost container in which J-list articles ordinarily reach the ultimate purchasers must however, be marked with the country of origin.

If an imported J-list article is intended to be repacked in a new container for sale to an ultimate purchaser after its release from Customs custody, or if the district director having custody of the article has reason to believe such article will be repacked after its release, the importer shall certify to the district director that (1) if the importer does the repacking, the new container shall be marked to indicate the country of origin of the article; or (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking for the article must be marked with the country of origin. See 19 CFR 134.25.

Because cut flowers, plants and other nursery stock are included on the J-list, these imported articles are not required to be individually marked with the country of origin. However, the outermost container in which the imported articles reach the ultimate purchaser must be marked with the country of origin of the article.

Assuming that the fresh cut flowers are imported in bulk and not pre-packaged, they are very similar in nature to fresh fruit and vegetables which are also included in the J-list. 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). Customs also held 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. Therefore, 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.

The plants which are intended for retail sale are contained in plastic pots. Since the pot is the outermost container in which the ultimate purchaser would ordinarily receive the plant, the pot must be marked with the country of origin of the plant.

The young plants which will be re-potted prior to retail sale trigger the requirements of 19 CFR 134.25 and accordingly, the importer will be required to certify at the time of importation that once re-potted, the plastic pots in which the plants are sold will be properly marked with the country of origin of the plant.

A scion is a shoot or twig, especially one cut for grafting or planting. The scions and budwood sticks are also included on the J-list and excepted from individual country of origin marking pursuant to 19 CFR 134.33 and need only be marked with the country of origin on the outermost container in which the ultimate purchaser will ordinarily receive them. Marking the country of origin of the outermost container of the scions and budwood sticks which complies with the methods and manner of marking provided for in 19 CFR 134.41 will satisfy the country of origin marking requirements.

Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), requires that the degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstances, the marking shall remain on the article or its container until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling.

Because all the above imported items are on the J-list, marking the country of origin on plant labels will not be necessary so long as the outermost container in which the imported articles ordinarily reach the ultimate purchaser are legibly and securely marked.

HOLDING:

Imported fresh cut flowers must be marked with the country of origin on the shipping cartons. Imported plants must be marked with the country of origin on the plastic pots in which the ultimate purchaser will ordinarily receive them.

If the plants will be re-potted prior to sale to the ultimate purchaser, the importer must certify, at the time of importation, in accordance with 19 CFR 134.25 that if he does the re-potting, he will mark the new pot with the country of origin of the plants. If someone else will be re-potting the plants, the importer must certify that he will notify the subsequent purchaser or transferee in writing, at the time of the sale or transfer to a subsequent purchaser or transferee, that any new containers for the plants must be marked with the country of origin of the plants.

The bundles of scions and budwood sticks must be marked with the country of origin on the outermost container which complies with 19 CFR 134.41(b).

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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