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NY L87043

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September 7, 2005

MAR-2 RR:NC:N2:221 L87043

CATEGORY: MARKING

Mr. Pete Mento
Expeditors Tradewin, LLC
1015 Third Avenue, 12th Floor
Seattle, WA 98104

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED PLASTIC COMPONENTS FOR A SEED KIT

Dear Mr. Mento:

This is in response to your letter dated August 17, 2005, on behalf of AeroGrow International, Inc., requesting a ruling on whether it is acceptable to mark the container in which imported plastic components are repackaged in the U.S. with the country of origin in lieu of marking the article itself when no other markings appear on the article itself. A marked sample container was submitted with your letter for review.

The components consist of a plastic seed basket, clear plastic dome and plastic spacer. The items will be imported in bulk, packaged in disposable cardboard cartons. Within each carton the products will be in plastic bags, each bag containing approximately 250 pieces. The cardboard cartons will be stamped with the country of origin and the plastic bags inside the cartons will be marked with stickers indicating the country of origin. Once received by AeroGrow, the cardboard cartons and plastic bags will be discarded.

After importation the plastic seed basket will be filled with a growing medium and seeds and then covered with a printed paperboard label. A clear plastic dome will be snapped onto the basket to form a seed pod. The seed pods are intended for use with a home gardening system. The seed pods will be packed into a seed kit that includes up to seven seed pods, a box of nutrient tablets, instructions for care and use of the seed kit and a desiccant. The plastic spacer is used in the packaging of seed kits that contain fewer than seven seed pods, and is used to fill the pre-stamped hole for the seed pod. Some seed kits will be packaged and sold with the Kitchen Garden™ growing system and others will be sold separately as supplemental kits for the gardening set.

You state that it is cost prohibitive to mark the plastic components individually. You also indicate that marking on the plastic dome might alter the characteristics of the component by reducing the amount and/or quality of light reaching the seeds contained underneath. You have submitted a sample of the box in which the seed kits will be packaged. The box is printed to indicate that the kit is assembled in the USA from components of USA and China. However, you also indicate that the design of the retail packaging for the seed kits is not yet finalized, and that you intend to provide the port director with examples of the packaging once the design has been completed.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 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 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 and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally 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 components of the seed kit is the consumer who purchases the product at retail.

An article is excepted from marking under 19 U.S.C. 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 reasonably indicate the origin of such article. However, since the plastic components are not imported in their marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the port director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized at the discretion of the port director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, assuming that the port director is satisfied that the imported plastic components will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the port director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported plastic components will not be required.

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 provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at 646-733-3023.

Sincerely,

Robert B. Swierupski
Director,

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