CLA-2-96:OT:RR:NC:N4:422
Mr. Rich Parke
Traly USA, Inc
2707 Pienza Circle
Royal Palm Beach, FL 33411
RE: The tariff classification of pencils, markers, rulers, protractors, pencil sharpeners, erasers, ballpoint pens and notepads from China and pencils from Taiwan
Dear Mr. Parke:
In your letter dated August 30, 2010, you requested a tariff classification ruling.
The two submitted samples are each identified as a Triple Zip Kit Case. Each item consists of a triple zippered case that is constructed of polyvinyl chloride (PVC) plastic material, foam plastic material, paper, elastic and webbing. One of the cases features a “Disney Hannah Montana The Movie” design on the front and back cover and the other one has a “Tim Burton’s The Nightmare Before Christmas” design on the front and back cover. Each case measures approximately 4¾”W x 7 ¾”L x 2½”H and opens up into three zippered storage compartments. Each case includes a notepad, 2 ballpoint pens, an eraser, a pencil sharpener, a protractor, a triangular ruler, a 6” ruler, 18 porous tipped markers of different colors, and 18 pencils of different colors.
These two items are each considered to be “goods put up in sets for retail sale” within the meaning of General Rule of Interpretation (GRI) 3 and each set is classifiable under a single tariff provision. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized Tariff Schedule of the United States (HTSUS) and are generally indicative of the proper interpretation of these headings.
EN VII to GRI 3(b), states that in "all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable." However, the term "essential character" is not defined within the HTSUS, GRI’s or ENs. EN VIII to GRI 3(b) gives guidance, stating that "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."
There are 18 pencils and 18 markers in each of the two items. The pencils each measure 6¾” in length and the markers each measure 5¼” in length. In addition, the writing cores of the pencils wil last much longer than the ink of the markers. It is therefore the opinion of this office that the 18 pencils in each item provide each of the items with the essential character, within the meaning of GRI 3(b).
The applicable subheading for the Triple Zip Kit Cases along with all of the included component articles will be 9609.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for pencils…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 questioned whether or not antidumping duties would apply to these pencils. In fact, these pencils may be subject to antidumping duties. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on "Contact Us"). You may also write to them at the U.S. Department of Commerce, International Trade Administration, Office of Antidumping Compliance, 1401 Constitution Avenue NW, Washington, DC 20230. For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on "Antidumping and Countervailing Duty" on the lower right hand side under "Investigations"), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://addcvd.cbp.gov.
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.
Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which 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 such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, 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 side(s) or surface(s) in which the name or locality other than the actual country of origin appears.
In the instant scenario, all articles of the two subject items are made in China except the pencils in the Hannah Montana case. In that item, the pencil blanks are made in Taiwan with a plain white barrel and then shipped to China where the decoration in the form of plastic wrap is placed over the white barrel and shrink wrapped. The pencils are then added to the case in China. Attached to the Hannah Montana case are two hang tags, one of which has the words “Made in China” printed on the surface and one of which has the words “Pencil made in Taiwan Printed and assembled in China” printed on the surface.
For the Hannah Montana case, wherever one of the country names appears on each of the hang tags, there must appear, legibly, permanently and in close proximity to that name, and in comparable size, the name of the other country. For example, “Made in China, Pencils made in Taiwan and decorated in China”.
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