NY 818442 - THE COUNTRY OF ORIGIN MARKING OF NURSERY STOCK FROM CANADA - United States International Trade Commision Rulings

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NY 818442

February 13, 1996

MAR-2 RR:NC:FC:231 818442

CATEGORY: MARKING

Mr. Fred Somerville
Somerville Nurseries, Inc.
P.O. Box 70
Alliston, Ontario L9R 1T9
Canada

RE: THE COUNTRY OF ORIGIN MARKING OF NURSERY STOCK FROM CANADA

Dear Mr. Somerville:

This is in response to your letter dated, December 7, 1995, requesting a ruling on general marking information on nursery stock from Canada. A marked sample was not submitted with your letter for review.

The merchandise is comprised of nursery stock in plastic pots, trays, flats, burlap, wire baskets, and twine. Some of the nursery stock will be shipped as single items, not collectively, and it may have no container, i.e., the branches of unrooted stock may be contained by twine. In your correspondence you inquire as to what constitutes a usual container for marking purposes. You do not indicate whether or not the nursery stock that is shipped in plastic pots, trays, flats, burlap, and wire baskets, will be repotted prior to retail sale.

The marking statute, section 304, Tariff Act of 1930, as amended (19 USC 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 legible, indelibly and permanently as the nature of the article (or its 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.

As provided in section 134.41(b), Customs Regulations [19 CFR 134.41(b)], the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. Section 134.1(d) defines the ultimate purchaser as the last person in the U.S. who will receive the article 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. In this case the ultimate purchaser of the nursery stock is the consumer who purchases the product at retail.

An article is excepted from marking under 19 USC 1304 (a)(3)(D) and section 134.32(d), Customs Regulations [19 CFR 134.32(d)], if the marking of a container of such article will reasonable indicate the origin of such article. If Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the nursery stock by viewing the container in which it is packages, the individual nursery stock would be excepted from marking under this provision.

Nursery stock that is imported in containers that are marked in the manner described above, is excepted from marking under 19 USC 1304 (a)(3)(d) and 19 CFR 134.32 (d). Accordingly, marking the container in which the nursery stock is imported and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for the imported nursery stock, provided that the district director is satisfied that the article will remain in the marked container until it reaches the ultimate purchaser.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations [19 CFR 134.41(a)], provides that, as a general rule, marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

Cut flowers and plants, shrubs and other nursery stock, are on the "J-list" and they are excepted from individual marking requirements pursuant to 19 USC 1304 (a)(3)(j) and 19 CFR 134.33. However, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents. As provided in 19 CFR 134.25, if the imported J-list product is repacked prior to sale to the ultimate purchaser, the importer must certify to Customs that he will properly mark the new package or alternatively, notify the repacker of the obligation to mark the new package. The certification procedures, which are for the purpose of ensuring that the ultimate purchaser will be advised of the country of origin, apply to imported J-list articles processed and repacked after importation unless the articles are substantially transformed prior to repacking. Absent a substantial transformation, the consumer or other recipient of the cut flowers, plants, shrubs and other nursery stock, is considered to be the ultimate purchaser and must be advised of the country of origin of the nursery stock.

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 much be marked with the country of origin (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.

In your correspondence you indicate that some of the nursery stock that is intended for retail sale is contained in plastic pots, trays, flats, burlap, wire baskets, and twine. If the pot is the outermost container in which the ultimate purchaser will receive the plant, the pot must be marked with the country of origin of the plant.

Marking that indicates the country of origin of the plant and pot on the bottom of the pot is not considered to be marking that is conspicuous, i.e., marking that would be easily found by the ultimate purchaser. It is unlikely that a purchaser will turn upside down a pot full of soil. Furthermore, pots that have marking on the bottom are often placed in trays which obscure the bottom of the pots. Finally, bottoms of the pots are often covered by muddy water and dirt due to the watering that plants receive pending sale to an ultimate purchaser.

This office recommends that the marking occur at the side of the pot, where it may be easily seen by ultimate purchasers upon observation of the pot and plant. An adhesive sticker, imprinted with the country of origin information, may be placed on the side of the pot. The sticker should be secure enough to remain on the pot during normal handling and distribution until receipt by an ultimate purchaser. Otherwise, a plastic tag may be placed in each pot.

Some of the nursery stock may be repotted prior to retail sale. Young plants that are repotted 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 repotted, the plastic pots in which the plants are sold will be properly marked with the country of origin of the plant.

If the plants are repotted 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 repotting, he will mark the new pot with the country of origin of the plant. If someone else repots 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.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of the ruling or the control number indicated above should be attached to the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Ralph Conte at (212) 466-5759.

Sincerely,

Roger J. Silvestri
Director

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