HQ 562086 - Country of origin marking of plastic flower pots; 19 CFR 134.24(b); Internal Advice; usual container; 134.22(d) - United States International Trade Commision Rulings

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HQ 562086

June 18, 2001

CLA-2 RR:CR:SM 562086 KSG

CATEGORY: MARKING

Port Director
U.S. Customs Service
40 S. Gay Street
Baltimore, MD 21202

RE: Country of origin marking of plastic flower pots; 19 CFR 134.24(b); Internal Advice; usual container; 134.22(d)

Dear Director:

This is in reference to your memorandum of March 27, 2001, requesting internal advice regarding the country of origin marking requirements for plastic flower pots made in Germany. Counsel requested internal advice on behalf of its client, Poeppelmann GmbH. Counsel submitted samples for our examination.

FACTS:

Poellelmann GmbH has exported plastic flower pots from Germany to the U.S. The pots are shipped in bulk in large cartons that are marked with the country of origin of the pots. The pots have no individual country of origin marking. The pots will be sold in the U.S. to wholesalers who will sell them to commercial growers to be filled with flowers and plants. The commercial growers receive the bulk shipments of pots in the imported marked outer containers. The consumer would purchase the flower or plant that is packaged in the pot. These pots have drainage holes in the bottom so that they can only be used temporarily. The pots account for a very small amount of the total value of the plant.

The pots enter through the ports of Baltimore, Boston, New York, Norfolk, Jacksonville, Charleston, Savannah, Miami, Mobile, New Orleans, Houston, Los Angeles, Long Beach, Oakland and Seattle.

ISSUE:

What are the country of origin marking requirements for the imported plastic flower pots, as described above?

LAW AND ANALYSIS:

As you are aware, section 304 of the Tariff Act of 1930 (19 U.S.C. 1304), as amended, 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 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements of 19 U.S.C. 1304.

Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) provides that "the 'ultimate purchaser' is generally the last person in the United States who will receive the article in the form in which it was imported." The last sentence of 19 U.S.C. 1304(b) provides that "usual containers in use as such at the time of importation shall in no case be required to be marked to show the country of their own origin." Accordingly, in determining whether the pots must be marked with their country of origin, we must determine whether they are to be used as usual containers under 19 U.S.C. 1304 and the implementing regulations of 19 CFR Part 134.

A "usual container" is defined in 19 CFR 134.22(d)(1), as:

For purposes of this subpart, a usual container means the container in which a good will ordinarily reach its ultimate purchaser. Containers which are not included in the price of the goods with which they are sold, or which impart the essential character to the whole, or which have significant uses, or lasting value independent of the contents, will generally not be regarded as usual containers. However, the fact that a container is sturdy and capable of repeated use with its contents does not preclude it from being considered a usual container so long as it is the type of container in which its contents are ordinarily sold. A usual container may be any type of container, including one which is specifically shaped or fitted to contain a specific good or set of goods such as a camera case or an eyeglass case, or packing, storage and transportation materials.

Section 134.24(a) provides that:

Disposable containers or holders subject to the provisions of this section are the usual ordinary types of containers or holders, including cans, bottles, paper or polyethylene bags, paperboard boxes and similar containers or holders which are ordinarily discarded after the contents have been consumed. Customs has ruled that shoe boxes (HRL 732823, dated January 19, 1990), 35mm plastic film canisters (HRL 733106, dated March 19, 1990), plastic audio cassette cases (NY 804860, dated December 8, 1994), and plastic compact disc cases (NY C86985, dated May 5, 1998) are disposable containers as set forth in 19 CFR 134.24.

The regulation set forth at 19 CFR 134.24(b) provides that disposable containers or holders imported for distribution or sale are subject to treatment as imported articles in accordance with the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202) and shall be marked to indicate clearly the country of their own origin. However, when the containers are packed and sold in multiple units (dozens, gross etc.), this requirement ordinarily may be met by marking the outermost container which reaches the ultimate purchaser. See 19 CFR 134.32(d).

As you pointed out, the flower pots are plastic and do not have a substantial structure, and the drainage holes render the pots unable to hold water, which is needed to keep flowers or plants alive. Therefore, the pots are generally only usable for storage of plants at a nursery and for transportation of the flowers and plants to the purchaser's home. The commercial grower receives the pots in the imported marked containers and fills them with flowers and plants. Accordingly, the ultimate purchaser of the empty disposable pots is the nursery/commercial grower. Pursuant to 19 CFR 134.24(b), the imported pots are excepted from individual country of origin marking. Only the outermost containers which reach the ultimate purchaser are required to be marked with the country of origin of the pots. Please be aware, however, that if the pots are repackaged after importation by the wholesalers, the certification requirements of 19 CFR 134.26 will apply.

HOLDING:

Pursuant to 19 CFR 134.22(d) and 134.24, the imported pots are usual containers and may be excepted from individual country of origin marking. Only the outermost containers which reach the ultimate purchaser are required to be marked with the country of origin of the pots.

This decision should be mailed by your office to the internal advice requester no late than sixth days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision
available to Customs personnel and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other means of public distribution.

Sincerely,

John Durant
Director,
Commercial Rulings Division

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