CLA-2-96:OT:RR:NC:N2:222
Mr. Joseph R. Hoffacker
Barthco Trade Consultants
The Navy Yard
5101 S. Broad Street
Philadelphia, PA 19112
RE: The tariff classification of crayons and markers from Taiwan and paints, a paint brush, stamps, an ink pad, an activity book and a plastic case from China
Dear Mr. Hoffacker:
In your letter dated July 15, 2008, on behalf of K.B. Toys of Massachusetts, Inc., you requested a tariff classification ruling.
The submitted sample is identified as a Barbie Activity Art Tote, item# 90717. This item consists of the following components: 6 watercolor paints, 1 paintbrush, 1 activity pad, 5 markers, 6 crayons, 2 stamps, 1 inkpad and a plastic case in which all of the components are packaged together for retail sale. The activity pad measures 6 inches by 4 inches and contains 30 pages of scenes involving the Barbie character that can be decorated with the crayons, paints, stamps and markers. The watercolor paints and the paint brush are packaged together within the plastic case. As you requested, the sample will be returned to you.
The plastic case is of a class or kind of merchandise that is principally used as a travel bag that is designed to hold small personal effects and toiletries during travel. The front and back surfaces of the bag are made of clear polyvinyl chloride (PVC) plastic sheeting material. Each of these surfaces is sewn along all four sides to PVC material that is pink in color and forms the top, bottom and two opposing sides of the case. The interior of the bag has one main compartment that is not specially shaped or fitted for any specific components. The bag has a zippered closure that extends along the entire top and more than half way down each of two opposing sides. A webbed textile carrying handle is sewn to the top of the bag. The bag measures approximately 9” (W) x 9” (H) x 1.75” (D).
The Explanatory Notes to the Harmonized Commodity Description and Coding System (ENs), although not legally binding, are the official interpretation of the tariff at the international level. In applying the provisions of the Harmonized Tariff Schedule of the United States (HTSUS), Customs will look to the ENs for guidance. In determining whether two or more articles imported together constitute a “set put up for retail sale” and are, therefore, classifiable under a single tariff provision, Explanatory Note X for General Rule of Interpretation (GRI) 3(b) provides the criteria as to whether the goods: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking.
In this case, the subject articles meet criteria (a) and (c) but do not meet criteria (b). It is the opinion of this office that the plastic case may be reused as a travel bag. Therefore, the plastic case is not put up together with the rest of the articles of this item to meet a particular need or carry out a specific activity. Consequently, all articles of this item must be classified separately.
You have suggested that the correct classification for the plastic case is 9902.01.78. However, we do not agree that the plastic case is correctly classified in the provision that you suggest. Heading 9902 covers a wide variety of goods that have a temporary reduction in their rate of duty, by virtue of legislative action. Subheading 9902.01.78 provides for bags (provided for in subheading 4202.92.45) for transporting, storing, or protecting goods of certain headings of chapter 95. Since none of the components of the instant item are correctly classified in chapter 95, the plastic case does not meet the prerequisites of subheading 9902.01.78.
The applicable subheading for the 6 watercolor paints and 1 paintbrush will be 3213.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for artists’, students’ or signboard painters’ colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or in similar forms or packings: colors in sets. The rate of duty will be 6.5 percent ad valorem on the entire set.
The applicable subheading for the activity pad will be 4903.00.0000, HTSUS, which provides for children’s picture, drawing or coloring books. The rate of duty will be free.
The applicable subheading for the 5 markers will be 9608.20.0000, HTSUS, which provides for felt tipped and other porous-tipped pens and markers. The rate of duty will be 4 percent ad valorem.
The applicable subheading for the 6 crayons will be 9609.90.8000, HTSUS, which provides for …crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks: Other: Other. The rate of duty will be free.
The applicable subheading for the 2 stamps will be 9611.00.0000, HTSUS, which provides for date, sealing or numbering stamps and the like, (including devices for printing or embossing labels), designed for operating in the hand. The rate of duty will be 2.7 percent ad valorem.
The applicable subheading for the in pad will be 9612.20.0000, HTSUS, which provides for ink pads, whether or not inked, with or without boxes. The rate of duty will be 3.5 percent ad valorem.
The applicable subheading for the travel bag will be 4202.92.4500, HTSUS, which provides for travel, sports and similar bags, with the outer surface of sheeting of plastic, other. The rate of duty will be 20% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
You have also requested a marking ruling. You have stated the following: “The item is made in China other than the crayons and markers that are made in Taiwan.” This item is marked “Made in China. Crayons and Markers made in Taiwan.” You have asked if this marking is acceptable or if each component of this item would specifically need to be marked with the country of origin.
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 Barbie Activity Art Tote 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. Accordingly, 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 Barbie Activity Tote by viewing the container in which it is packaged, the individual components of this item would be excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the Barbie Activity Tote is imported and sold to the ultimate purchaser, in lieu of marking the various components themselves, is an acceptable country of origin marking for the imported Barbie Activity Tote provided the port director is satisfied that the article will remain in the marked container until it reaches the ultimate purchaser.
However, section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin.
In the instant case, the following is printed on the retail packaging of the Barbie Activity Art Tote: “Hauppauge, NY 11788.” In such a case, there must appear, legibly and permanently, in close proximity to the printed reference to “Hauppauge, NY 11788” and in at least a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning. In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same sides or surface in which the name or locality other than the actual country of origin appears.
The reference to “Hauppauge, NY 11788” on the retail packaging of the Barbie Activity Art Tote is printed in larger characters than the marking of the country of origin of this item. Therefore, the marking on the submitted sample, as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported Barbie Activity Art Tote. The country of origin marking of this item must be in at least a comparable size to the printed reference to “Hauppauge, NY 11788.”
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Gary Kalus at (646) 733-3055.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division