CLA-2-96:OT:RR:NC:N4:422
Ms. Macie Cooper
Samuel Shapiro & Co., Inc.
100 N. Charles St., Suite 1200
Baltimore, MD 21201
RE: The tariff classification of pencils from Taiwan and a pen, a memo pad, a magnet sheet, a tape dispenser, erasers and a child’s novelty handbag from China.
Dear Ms. Cooper:
In your letter dated December 10, 2009, on behalf of Innovative Designs, LLC, you requested a tariff classification ruling.
The submitted sample is identified as a “How to Train Your Dragon – Dragon Training 101 Set.” This item consists of 2 wood pencils, a ball point pen, a 60 page memo pad that measures 4” x 3¼”, a magnet sheet that includes 4 magnets, a tape dispenser with tape, 2 plastic erasers and a carrying case. All of the items are decorated with illustrations from the feature film, “How to Train Your Dragon.” The carrying case is circular in shape, and constructed with an outer surface of polyvinyl chloride (PVC) plastic sheeting. It has an unlined main compartment with no additional features. It secures with a nylon zipper closure, has a webbed carrying handle and measures approximately 8” in diameter.
You have suggested that the various articles of this item should be classified separately because you do not believe “the kit constitutes a set by definition.” This office agrees that all articles of this item should be classified separately. You have also suggested that the pencils are correctly classified in subheading 9609.10.0000, the pen is correctly classified in subheading 9608.10.0000, the memo pad is correctly classified in subheading 4820.10.2020, the magnet sheet is correctly classified in subheading 8505.19.2000, the tape dispenser is correctly classified in subheading 3919.10.2030, the erasers are correctly classified in subheading 3926.10.0000 and the carrying case is correctly classified in subheading 4202.92.4500. This office does not agree with your suggested classifications for the carrying case and the magnet sheet but we agree with your suggested classifications for all the other articles of this item.
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 carrying case is a child’s novelty handbag that is designed and sized to contain the small personal effects that would normally be carried on a daily basis and can be reused as such. Therefore, the carrying 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.
The applicable subheading for the tape dispenser with tape will be 3919.10.2030, Harmonized Tariff Schedule of the United States (HTSUS), which provides for self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics...in rolls of a width not exceeding 20 cm: other…transparent tape, not exceeding 55 m in length, not exceeding 5 cm in width. The rate of duty will be 5.8 percent ad valorem.
The applicable subheading for the plastic erasers will be 3926.10.0000, HTSUS, which provides for other articles of plastics...office or school supplies. The rate of duty will be 5.3 percent ad valorem.
The applicable subheading for the carrying case will be 4202.22.1500, HTSUS, which provides, in part, for handbags, whether or not with shoulder strap, including those without handle, with outer surface of sheeting of plastic. The rate of duty will be 16 percent ad valorem
The applicable subheading for the memo pad will be 4820.10.2020, HTSUS, which provides for memorandum pads, letter pads and similar articles. The rate of duty will be Free.
The applicable subheading for the magnet sheet will be 8505.19.1000, HTSUS, which provides for permanent magnets and articles intended to become permanent magnets after magnetization: Other: Flexible magnets. The rate of duty will be 4.9 percent ad valorem.
The applicable subheading for the pen will be 9608.10.0000, HTSUS, which provides for ball point pens. The rate of duty will be 0.8 cents each plus 5.4 percent ad valorem.
The applicable subheading for the pencils will be 9609.10.0000, HTSUS, which provides for pencils and crayons, with leads encased in a rigid sheath. The rate of duty will be 14 cents per gross plus 4.3 percent 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 that "the pencils are country of origin Taiwan and the other items are country of origin China." Printed on a tag that is attached to the zipper head by a plastic fastener are the words “Made in China.” Therefore, you have suggested that this item “may not be marked correctly with the country of origin.” You have further suggested that the item would be correctly marked with the country of origin if it would “designate the pencils as Taiwan and the remainder of the items as China.”
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 situation, the ultimate purchaser of the “How to Train Your Dragon – Dragon Training 101 Set” is the consumer who purchases the product at retail.
With regard to the permanency of a marking, Section 134.41(a), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, Section 134.44, generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. Section 134.44(c), states that “when tags are used, they must be attached in a conspicuous place and in a manner which assures that unless deliberately removed they will remain on the article until it reaches the ultimate purchaser.”
The location of the marking on the hang tag of the submitted sample would be acceptable as it is attached in a conspicuous place and cannot be removed unless the plastic fastener is cut with a scissor-like device. In addition, product information is also printed on the tag of the submitted sample, which would attract attention to the tag, thereby making the tag that much more of a conspicuous location for a country of origin marking.
However, as you have stated, the marking on the submitted sample is not acceptable because it does not address the country of origin of the pencils, which is different than that of the other articles of the item. In addition, the marking on the submitted sample is too small and the black lettering on the blue background provides little contrast to be legible. In order for the marking on the tag to be acceptable in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, it would have to state “Pencils made in Taiwan, all other articles made in China” and either the size of the country of origin lettering would have to be larger than that on the submitted sample or a different contrast of colors of the lettering against the background would have to be used.
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