CLA-2 CO:R:C:T 089978 SK MAR-2-05 CO:R:C:V 734241 GRV

Ms. Jan McGregor
Jan McGregor Studios
19 Front Street
P.O. Box 26
Coupeville, WA 98239

RE: Classification and country of origin marking of a wood particle board box with decorative paper exterior and lining; 4420, HTSUSA; "washi" tea box; GRI 3(b) essential character imparted by wood; marking requirement not satisfied by unattached folded card insert; 134.41(b); permanence; T.D. 55673; C.S.D. 87-9; 733728; 734150

Dear Ms. McGregor:

This is in response to your letter of June 24, 1991, requesting a ruling concerning the tariff classification and country of origin marking for tea boxes from Japan. A sample of the merchandise was submitted for examination and will be returned to you under separate cover per your request.

FACTS:

The tea box is constructed of wood particle board, measuring approximately 6-3/4" x 4-3/8" x 4-1/4", and has a detachable lid. The exterior of the box is entirely covered, including the bottom, with decorative paper you describe as handmade Japanese "washi" paper. The interior and underside of the detachable lid are lined with aluminum foil-backed paper. The box is intended to be used for tea storage, but can also be used as a recipe box, jewelry box, candy box, etc.... The box is not specially shaped or fitted for any specific purpose.

Regarding the country of origin marking of the tea boxes, you state that placing a sticker on the tea box would damage the covering of the box, regardless if the marking were placed on the inside or outside of the box. Accordingly, you propose to insert a small folding card inside each box before it is sold in the U.S. (You state that inserting the descriptive card in each box prior to shipment to the U.S. would be cumbersome for the Japanese manufacturer and expensive for you). The card describes where and how "washi" paper is made and details how to use and care for the box. It is your contention that the information contained on the card--alluding to Japan some four times in an historical/product care context--more than meets the country of origin marking requirements.

ISSUES:

I. Is the article at issue properly classifiable under heading 4420 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

II. Whether the proposed country of origin marking scheme-- placing a folded card, which alludes to Japan some times, inside the tea boxes--satisfies the requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b).

LAW AND ANALYSIS:

Classification under the HTSUSA

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relevant section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, and if the headings and chapter notes do not otherwise require, the remaining GRI may be applied in the order of their appearance.

GRI 3 states, in pertinent part:

When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be affected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods ... those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or or precise description of the goods.

The article at issue consists of both wood and paper which are classifiable under two headings of the tariff schedule. Since both components of the box are separately provided for, GRI 3(b) applies as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components ... which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character.

Explanatory Note VIII to GRI 3(b) states:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The essential character of this article is imparted by the wood for it is this component which lends shape, strength and function to the box. Although the "washi" paper contributes to the value of the box by virtue of its detailed manufacturing process, the paper itself is merely decorative It is Customs' opinion that it is the wood which enables the article to function as a tea box or any other type of storage box and therefore it is the wood which lends the box its essential character. See NYRL 863159. Accordingly, the box is classifiable under heading 4420, HTSUSA, which provides for caskets and cases for jewelry or cutlery and similar articles of wood: ... all the foregoing of wood: other: not lined with textile fabrics.

Country of Origin Marking Requirements

The marking statute, 304 of the 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 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.

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. 19 CFR 134. 41(b). This section also provides that the degree of permanence should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article (or its container) until it reaches the ultimate purchaser unless it is deliberately removed. See, T.D. 55673(2), 97 Treas.Dec. 529 (1962). Further regarding this permanency requirement, we have stated that the marking must be able to survive normal distribu- tion and store handling. C.S.D. 87-9.

The primary purpose of the country of origin marking statute is to "mark the goods so that at the time of purchase the ulti- mate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influ- ence his will." United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). The "ultimate purchaser" is defined generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d). Example (3) of this section provides that if an article is to be sold at retail in its imported form, the purchaser at retail is the "ultimate purchaser."

In Headquarters Ruling Letter (HRL) 733728 dated November 21, 1990, glassware figures, imported in boxes, were individually marked by means of transparent stickers affixed to the bottom of each figurine. Finding that this means of marking the country of origin was conspicuous and also sufficiently secure to ensure that in any foreseeable circumstance the marking would remain on the article until it reached the ultimate purchaser unless it was deliberately removed, we held that this means of marking the glassware figures acceptable for purposes of 19 U.S.C. 1304 and 19 CFR 134.41(b).

In HRL 734150 dated July 15, 1991, we again addressed the permanency requirement in the context of cigarette lighters and their vinyl pouches, which were marked with pressure sensitive labels that were securely affixed to each article. Finding that these affixed labels were sufficiently permanent, we held that this means of marking the imported merchandise was acceptable for purposes of 19 U.S.C. 1304 and 19 CFR 134.44.

Applying these considerations to the "washi" tea boxes here, and based on an examination of the sample submitted, we are not convinced that the merchandise cannot be marked other than by inclusion of a folded card placed inside the merchandise after it is imported into the U.S. In the first place, merchandise must be marked at the time it is imported into the U.S. See, U.S. Wolfson Bros. Corp. v. United States, C.A.D. 856, 52 CCPA 46 (1965). Second, the inside of the lid, as it is covered merely with aluminum foil, affords an adequate location and surface of which to mark the country of origin of the tea boxes. Third, should you choose to mark the country of origin by means of adhesive paper stickers, this would dispose of the permanence problem presented by the card insert proposal, as a reasonable foreseeable circumstance of store handling has the card insert falling out of the tea box when an ultimate purchaser turns the box over, without its lid on, while inspecting the box for its country of origin marking. Should the first consumer decide not to purchase the tea box, a second consumer would not have the benefit of having the inserted card inform him/her of its foreign origin. Lastly, the proposed card insert fails to clearly and conspicuously denote that Japan is the country of origin of the imported merchandise. Merely alluding to a country that manufactures of a portion of the imported article--the "washi" paper--in an historical/product care context does not satisfy the purpose of the marking statute: to provide notice to the ultimate purchaser that the entire article (s)he is about to purchase is an imported article. Accordingly, the proposed marking scheme does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b).

HOLDING:

The merchandise at issue is classifiable under subheading 4420.90.4000, HTSUSA, which provides for caskets and cases for jewelry or cutlery and similar articles of wood: jewelry boxes, silverware chests, cigar and cigarette boxes, microscope cases, tool or utensil cases and similar boxes, cases and chests, all the foregoing of wood: other: not lined with textile fabrics. The rate of duty is 6.7 percent ad valorem.

Based on the information and sample submitted, the proposed marking scheme--inserting folded cards in the tea boxes after they are imported--does not comply with the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b). The articles must be individually marked with their country of origin at the time they are imported, and the marking must be such that it is affixed to the article and not merely placed inside on a card or other unattached piece of paper.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division