CLA-2-06:RR:NC:2:231 K84491
Ms. Lisa Thomas
PBB Global Logistics, Inc.
670 Young Street
Tonawanda, NY 14150
RE: The tariff classification and country of origin marking of certain Canadian pansy plants in soil and in plastic pots of Canadian origin, which have been placed in woven, split bamboo baskets of Chinese origin, and then exported to the United States. NAFTA.
Dear Ms. Thomas:
In your letter, dated February 26, 2003, on behalf of your client Fernlea Flowers, Delhi, Ontario, you requested a tariff classification and country of origin marking ruling. The merchandise in question consists of pansy plants, plastic pots, and woven, split bamboo baskets. A sample of the basket and the plastic pots was submitted.
The goods in question are comprised of rooted, pansy plants that are packed with their soil in plastic pots. The plastic pots, which contain both the plants and their soil, are perforated to allow drainage of water. Both, the pansy plants, themselves, and the plastic liners are of Canadian origin. The bamboo baskets are open, unlined, rectangular baskets measuring approximately 4” in width by 7-1/2” in length and 3-7/8” in height. They are made of interwoven, flat strips of bamboo. The basket sides are woven with flat, bamboo strips that measure ¼, 3/8, and ½ inches in width. The basket bottoms are woven with flat, bamboo strips that measure 5/16 and 3/8 inches in width. The bamboo baskets are the product of China.
You have explained that the subject bamboo baskets are sourced in China, imported into Canada and shipped to Fernlea Flowers’ facility in Delhi, Ontario. Fernlea Flowers will then place two fully-grown pansies potted in the plastic pots into each bamboo basket. The basket will be bar coded and marked “Product of Canada” and exported to the United States.
In the condition as imported, we find that the plastic pots are considered packaging for the live pansy plants. However, the bamboo baskets cannot be considered packaging for the live pansy plants. The baskets are usual, fungible products that are marketed empty or containing a variety of items. Furthermore, the subject baskets are not containers normally used for packing plants. Thus, the plants and the baskets are separate and distinct products of commerce. In this regard, you may wish to review various rulings issued by U.S. Customs and Border Protection, e.g., NY J88751 and HQ 958523.
The applicable subheading for rooted, pansy plants, packed with their soil in plastic receptacles, will be 0602.90.6090, Harmonized Tariff Schedule of the United States (HTS), which provides for other live plants (including their roots), cuttings and slips; mushroom spawn, other, other, other, with soil attached to roots, other. The general rate of duty will be 1.9 percent ad valorem. These goods may be eligible for preferential duty treatment under Section 181, Customs Regulations.
The applicable subheading for the woven, split bamboo baskets will be 4602.10.0900, HTS, which provides for basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; of vegetable materials, other baskets and bags, whether or not lined, of bamboo, other. The general rate of duty will be 10 percent ad valorem.
You state that the bamboo baskets will be bar coded at Fernlea Flowers facilities in Canada and will state “Product of Canada”. You ask whether the proposed marking is acceptable for the subject product in the condition that it will be imported into the United States. The submitted sample of the basket and two plastic pots is not marked or bar coded.
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 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.
The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.
Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.
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) of the regulations, provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good 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.
Plants, shrubs and other nursery stock are listed in the J-List exceptions under section 134.33, Customs Regulation (19 CFR 134.33). Articles of a class or kind listed in the J-List are excepted from the requirements of country of origin marking in accordance with the provisions of section 304(a)(3)(J), Tariff Act of 1930, as amended (19 U.S.C. 1304(a)(3)(J). However, in the case of any article described in this list which is imported in a container, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents in accordance with the requirements of subpart C of Part 134, Customs Regulation (19CFR Part 134).
We find that the bamboo baskets are containers that are subject to treatment as imported articles under the HTSUS. Thus, they shall be marked to indicate clearly the country of their own origin in addition to any marking which may be required to show the country of origin of their contents.
The subject bamboo baskets are required to be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article will permit, in such a manner as to indicate the ultimate purchaser in the U.S. the English name of the country of origin of the bamboo basket and its content. Section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304).
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR 181).
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 Thomas Brady at (646) 733-3030.
Sincerely,
Robert B. Swierupski
Director
National Commodity
Specialist Division