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HQ 085205

September 27, 1989

CLA-2:CO:R:C:G 085205 SER


TARIFF NO.: 4901.99.00

Mr. Alex Romero Jr.
A.F. Romero & CO Inc.
P.O.Box 989
Calexico, CA 92231

RE: "Successful Gardening Kit"

Dear Mr. Romero:

This is in reference to your letter dated July 27, 1989, requesting the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and the correct country of origin marking requirements, of the "Successful Gardening Kit". A sample of the kit, which includes products from Taiwan, China, and the United States was submitted.


The kit consists of several items packed together in a printed, corrugated paperboard mailing carton: an unfilled ring binder having a paperboard cover printed with the title "Success with House Plants", four sets of shrink-wrapped pages (printed with pictures and text about growing various flowers and plants) designed to be inserted into the binder, and a pair of "plant scissors" said to be designed especially for use in tending of indoor plants.

The binder is marked "Made in China" on the back, it is printed in black on a white background. The letters of these words are approximately 1/16" high. The pages are printed in the United States and have no markings. The scissors are made in Taiwan and are marked "Taiwan" in a circular shape, die-casted onto one of the blades. All of these articles will be shipped to Mexico, where they will be packed together, forming the individual kits at issue, which will then be imported into the United States. They will be sent to randomly "selected occupants (in the United States) as a gift offering, requesting that $1.00 be paid if they choose to keep the kit and join the club, or that they return the kit if they choose not to join the club."


What is the classification of the "Successful Gardening" kit under the HTSUSA?


Classification of goods under the HTSUSA, is governed by the General Rules of Interpretation (GRI), taken in order. When goods are prima facie classifiable under two or more headings GRI 3 is applicable. In this case classification is determined by application of GRI 3(b) which provides:

Goods put up in sets for retail sale, shall be classified as if they consisted of the component which gives them their essential character.

The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. The Explanatory Note to GRI 3(b) provides, in part:

For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings;

(b) consist of products or articles put together to meet a particular need or carry out a specific activity; and

(c) are put in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The merchandise at issue meets this three part test so as to constitute a set. There are at least two articles which are prima facie, classifiable in different headings. The plant scissors are classifiable under subheading 8213.00.90 HTSUSA, which provides for scissors; other, valued over $1.75/dozen. The printed pages are classifiable under subheading 4901.99.00 HTSUSA, which provides for printed books, printed matter; other.

The merchandise at issue is also put in a manner suitable for sale directly to users without repacking. The "set" will be packaged in Mexico and will not undergo any further assembly in the United States.

The most important element in this case is whether the "set" consists of products or articles put up together to meet a particular need or carry out a specific activity. Both articles revolve around the basic premise of gardening. In this instance the articles compliment each other and aid the user in the tasks of basic gardening. The printed material provides the user with knowledge about the plants and information on the care and maintenance of the plants. The scissors are then utilized in the care of the plants. These articles are put together to carry out a specific activity, and thus are a "set".

With the elements for sets satisfied, the essential character of the set must be determined to allow for proper classification. "In general, 'essential character' has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article." Harmonized System Handbook: A Guide to the New U.S. Tariff, Office of Reg. & Rulings, U.S. Customs Service (August 1986), page 14. The essential character of this set is imparted by the printed pages. The main selling point of the set is the information on the pages. The scissors are merely a bonus for those who purchase this product and are not the principal article for which someone would purchase this product.


The merchandise at issue meets the requirements of a set under GRI 3(b), and the essential character of this set is imparted by the printed material. Classification is under subheading 4901.99.00, HTSUSA, which provides for printed books, printed matter; other. The rate of duty is free.


Does the merchandise at issue meet the country of origin requirements?


Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that, unless excepted, every article of foreign origin, or its container, must be legibly, permanently, and conspicuously marked to indicate the country of origin to an ultimate purchaser in the United States. The primary purpose of the country of origin marking statute is to "mark goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." National Juice Products Association v. United States, 10 CIT 48, 628 F. Supp. 978 (1986), and United States v. Friedlaender & Co., 27 C.C.P.A.

297, 302, C.A.D. 104 (1940). The regulations implementing the requirements and exceptions to 19 U.S.C. 1304 are set forth in the Code of Federal Regulations, 19 CFR Part 134.

In the Code, section 43 of Part 134 (134.43) deals with the marking requirements of specific articles. The "plant scissors" would fall within this provision. This section requires knives, scissors, etc. to be marked by die stamping, cast-in-the-mold lettering, etching, or engraving. The scissors at issue meet this requirement for they do have the country of origin, Taiwan, placed on one of the blades of the scissors.

But, section 41(b) of Part 134 (134.41(b)) calls for all markings to be marked legibly and conspicuously. The ultimate purchaser in the United States, it has been consistently held, must be able to find the marking easily and read it without strain. The scissors at issue do not meet this requirement. The printing of "Taiwan", even in good lighting, is not easily seen and can not be read without some strain. The scissors must be angled to catch the light just right or the printing of "Taiwan" is not discernable from the black scissor blade. The circular placement of the marking, though not desired, is acceptable. To meet the requirements of the Code, the marking should be more easily visible, similar to the "TIGER" marking on the other side of the blades.

The book binder from China falls under section 14 of Part 134 (134.14(a)) which deals with the marking of articles combined with other articles. It has consistently been the position of Customs that markings of origin must be clear and adequate as to the origin of the individual articles which are combined with other articles. A problem with the merchandise at issue is that the unmarked printed pages from the United States are to be placed in the marked binder from China, this could lead to the implication that the printed pages are also from China. There is no requirement that articles from the United States be marked, even when they will be combined with other articles which must be marked. To fulfill one aspect of the marking requirements, the binder from China should state "Binder made in China."

In addition, Section 134.41(b), of the Code states: "the ultimate purchaser in the United States must be able to find the marking easily and read it without strain". The contrast created by having black lettering on a white background is good and does enable a purchaser to find the marking easier, but the 1/16" lettering is rather small to allow for easy reading. It is strongly recommended, especially since changes to the wording must already be made, that the letters be 1/8". With the product at issue, this size of lettering would enable easier reading of the markings.

The country of origin markings of containers is dealt with in section 22 of Part 134 (134.22) of the Customs Regulations. Although in most instances country of origin markings must appear on the outside of a sealed container in order to provide potential purchasers with that information prior to completing their purchase decision, it is Customs assessment that due to the nature of delivery of these kits, i.e., unsolicited mailings, the origin information need not appear on the outside of the containers.


The merchandise at issue does not meet the country of origin marking requirements as set out in 19 U.S.C. 1304. The markings on the "plant scissors" must be more legible and more conspicuous, so that it can be read easily and without strain by the ultimate purchaser in the United States. The binder markings should be larger to allow for reading easily and without strain. In addition, the markings should be changed to "Binder made in China", so it is clear that the pages made in the United States are not mistakenly viewed as made in China when they are inserted into the binder.


Does affixing the envelope to the exterior of the carton, during packaging in Mexico, constitute "assembly"?


Custom's position is that the envelope-affixing is not an assembly, but is part of the packaging operation.


John Durant, Director
Commercial Rulings Division

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