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HQ 734014

April 26, 1991

MAR-2-05 CO:R:C:V 734014 KG

CATEGORY: MARKING

Horace Katz
Floral Sales Corp.
P.O. Box 16-5342
Miami, Florida 33116-5342

RE: Country of origin marking of imported dried flowers; 19 CFR 134.33

Dear Mr. Katz:

This is in response to your letter of December 27, 1990, requesting a country of origin ruling regarding imported dried flowers. In accordance with 19 CFR 177.1, this ruling applies to future or prospective transactions only; "that is, transactions which are not already pending before a Customs Service office by reason of arrival, entry, or otherwise."

FACTS:

You import uva stalks from Brazil and other countries. Uva stalks are natural dried flowers. The country of origin marking is on the outside of the carton or on the plastic bundles. A photograph of the uva stalks was enclosed.

ISSUE:

Whether imported dried flowers are excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(J) and 19 CFR 134.33 which except cut flowers from individual country of origin marking.

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 at 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). The outermost container in which the article ordinarily reaches the ultimate purchaser must however, be marked with the country of origin. 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. One category of the articles of a class or kind included in the list, which is set forth at 19 CFR 134.33 ("J-list) is cut flowers. The outermost container in which J-list articles ordinarily reach the ultimate purchasers must however, be marked with the country of origin.

The question presented is whether the proviso which excepts cut flowers from individual country of origin marking includes dried flowers. Customs ruled in HQ 085336 (December 20, 1989), that dried flowers would be classified under the Harmonized Tariff Schedule of the United States ("HTSUS") under subheading 0603.90.00 as cut flowers. The subheading specifically includes "fresh, dried, dyed, bleached, impregnated or otherwise prepared" flowers. Although specific inclusion within the same subheading of the HTSUS for classification purposes is not determinative, it is a very persuasive factor. Dried flowers are fresh cut flowers which are subjected to a drying process. Therefore, we conclude that dried flowers are part of a kind or class of cut flowers. Since the dried flowers are considered part of a kind or class of cut flowers, pursuant to 19 U.S.C. 1304 and 19 CFR 134.33, the dried flowers are excepted from individual country of origin marking.

Consistent with 19 U.S.C. 1304 and 19 CFR 134.33, Customs ruled in HQ 732822 (January 25, 1990), that fresh cut flowers are excepted from individual marking and that "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." This conclusion was based on consideration of the fact that fresh cut flowers imported in bulk and not pre- packaged are very similar in nature to fresh fruit and vegetables which are also included in the J-list and which are not required to be individually marked. For instance, 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), and 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.

In HQ 085336, Customs ruled that dried flowers packaged in a floral bouquet wrapped in tissue paper and bound with a paper- covered wire tie were required to be marked with their country of origin. That ruling is consistent with the analysis presented in HQ 729857, which only dealt with fresh cut flowers which were not pre-packaged. As long as the dried flowers involved in this case are not sold to retail customers in a pre-packaged outermost container, marking the country of origin of these flowers on the shipping cartons in which the retailer receives them satisfies the country of origin marking requirements.

HOLDING:

The dried flowers described above are considered part of a kind or class of cut flowers, and pursuant to 19 U.S.C. 1304 and 19 CFR 134.33, they are excepted from individual country of origin marking. As long as the dried flowers are not sold to retail customers in a pre-packaged outermost container, marking the country of origin of these flowers on the shipping cartons in which the retailer receives them satisfies the country of origin marking requirements.

Sincerely,

John Durant
Director,

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