HQ 0732616 - Country of origin marking requirements of disposable plastic baskets for produce - United States International Trade Commision Rulings

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HQ 732616

NOVEMBER 6, 1989

CLA-2 CO:R:C:V 732616 EAB

CATEGORY: MARKING

Miguel A. Leaman
Minister for Trade Affairs
Mexican Embassy
1911 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

RE: Country of origin marking requirements of disposable plastic baskets for produce

Dear Mr. Leaman:

This is in response to your letters of July 26 and September 7, 1989, regarding the country of origin marking of disposable plastic baskets imported into the U.S. containing Mexican produce.

FACTS:

Your inquiry is on behalf of Mexican producers and exporters of strawberries and cherry tomatoes who pack and ship their produce in disposable plastic baskets that are manufactured in Mexico by Empaques Industriales del Pacifico, S.A. de C.V. (EIPSA). The two sample baskets submitted have the phrase "Produce of Mexico" molded into the plastic at center-bottom and on the upper edges and sides. It appears that the marking phrase has been highlighted in yellow in order to draw attention to the marking.

You state that Customs at the U.S.-Mexican border has al- ready denied entry of filled containers on the grounds that the containers are not properly marked to indicate the country of origin of the produce. It is your understanding that the produce is excepted from marking, and the containers are properly marked under 19 CFR 134.24(d)(1).

ISSUE:

What are the country of origin marking requirements for disposable plastic baskets of produce?

LAW AND ANALYSIS:

In Headquarters Ruling Letters 731410 and 731364, dated June 17, 1988, Customs determined that unmarked, pint-sized, plastic containers manufactured by EIPSA and imported empty and not them- selves intended for distribution or sale were considered to be articles within the exception of 19 U.S.C. 1304(a)(3)(D), as im- plemented in section 134.32(d), Customs Regulations (19 CFR 134.32(d)). As such, in accordance with section 134.24(c)(1), Customs Regulations (19 CFR 134.24(c)(1)), only the outside wrappings or packages containing them had to be marked clearly to indicate the country of origin of the baskets.

Your inquiry concerns the marking of similar containers which are imported containing Mexican grown produce. Section 134.24(d)(1), Customs Regulations (19 CFR 134.24(d)(1)), does not except a particular article from country of origin marking. It provides that usual disposable containers in use as such at the time of importation shall not be required to be marked to show the country of their own origin, but shall be marked to indicate the origin of their contents regardless of the fact that the contents are excepted from marking requirements.

Section 134.11, Customs Regulations (19 CFR 134.11), provides that, unless excepted by law, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that 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 container) will permit, in such a manner as to indicate to an ultimate purchaser in the U.S. the English name of the country of origin of the article, at the time of importation into the Customs territory of the U.S. Containers shall be marked with the name of the country of origin of the article unless the container is also excepted from marking.

Section 134.1(d)(3), Customs Regulations (19 CFR 134.1(d)(3)), provides that if an article is to be sold at retail in its imported form, the purchaser at retail is the "ultimate purchaser".

Certain articles are excepted by 19 U.S.C. 1304(a)(3)(J) from the marking requirements if they were imported in substan- tial quantities during the five-year period immediately preceding January 1, 1937, and were not required during that period to be marked to indicate their origin. Among the list of such articles set forth in section 134.33, Customs Regulations (19 CFR 134.33) are na-tural products, such as vegetables, fruits, nuts, berries, etc., all of which are in their natural state or not advanced in any manner further than is necessary for their safe transportation. However, in the case of any article listed which is imported in a container, the outermost container in which the article ordinari-ly reaches the ultimate purchaser is required to be marked to indicate the origin of its contents.

While fresh strawberries and tomatoes in their natural state would be excepted from the country of origin marking requirement, the container is a disposable container to be imported full of Mexican produce to be sold at retail. As such, in accordance with 19 CFR 134.11, the container must be marked in a conspicuous place as legibly, indelibly and permanently as its nature will permit. Any method of marking at any location will be acceptable as long as the country of origin will appear conspicuously.

HOLDING:

Based upon our examination of the sample baskets submitted, Customs finds that the method of marking on the submitted sample is not conspicuous. As a result of the molding process, the marking is of insufficient size and contrast in color with the container itself to allow the ultimate purchaser in the U.S to be able to find the marking easily and read it without strain, as required in section 134.41(b), Customs Regulations (19 CFR 134.41(b)).

We suggest that a different or more prominent type of marking be used to indicate the country of origin of the Mexican produce contained therein.

Sincerely,

Marvin M. Amernick, Chief
Value, Special Programs and

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