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NY 808244

April 17, 1995

CLA-2-95:S:N:N8:225 808244


TARIFF NO.: 9503.30.0010

Ms. Kathy Williamson
Expeditors International
11701 Metro Airport Center Drive, Suite 109 Romulus, Michigan 48174

RE: The tariff classification of foam shapes from China

Dear Ms. Williamson:

In your letter dated March 21, 1995, you requested a tariff classification and marking ruling.

The sample submitted is called "Connect-O-Foam" which consists of various configurations of foam pieces in a plastic container with lid. In your letter you indicate that the foam is manufactured in the U.S. and shipped to Mexico where it will be further processed. In Mexico the foam will undergo die cutting and hole perforation. The finished pieces will then be collated by color and shape for packaging in plastic bags. Upon importation, the shapes will be sorted and repackaged in a plastic container of U.S. and China origin. The receptacle portion of the container will be manufactured in the U.S. and the plastic lid with handle will be made in China. You also state that a label printed in the U.S. and foam rods manufactured in the U.S. will be inserted in the container.

This office finds the foam shapes have undergone a substantial transformation process in Mexico. The die cutting and perforation operations convert the foam into a new product, i.e., building blocks of various shapes. Imported in bulk, the foam shapes are not considered a set for classifcation purposes but rather are simply multiple toy building blocks.

The applicable subheading for the "Connect-O-Foam" will be 9503.30.0010, Harmonized Tariff Schedule of the United

States (HTS), which provides for other construction sets and constructional toys: toy building blocks, bricks and shapes. The rate of duty will be free.

In regards to your inquiry on country of origin marking for the blocks you submit a large advertising label which would be inserted inside the clear container. The entire label is visible through the transparent plastic and reads in part "Made in USA" under a printed picture of the American flag. This proposed marking, "Made in USA", does not conform to the marking requirements of Section 304 of the Tariff Act of 1930 as amended (19 U.S.C. 1304). The marking statute 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.

In the instant case the foam shapes are imported unmarked, in bulk, for repackaging in the U.S. Since the blocks will be repackaged in a manner which would conceal the true origin of the pieces, it is recommended that the label be changed to reflect the proper countries of origin involved. This office suggests the printed label read as follows: "Contents of Mexico and U.S. origin, Lid Made in China", or similar words.

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 foam shapes 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. However, since the foam shapes are not imported in their
marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the district director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized at the discretion of the District Director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, provided the District Director is satis- fied that the imported foam shapes will be repacked in the manner described above (assuming the label is revised as suggested), and that the other conditions set forth in 19 CFR 134.34 are met, the district director may authorize an exception under 19 CFR 134.32(d), in which case marking of the individual imported shapes will not be required.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


Jean F. Maguire
Area Director

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