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NY A83922




June 19, 1996

CLA-2-95:RR:NC:FC: 225 A83922

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 9505.90.4000

Ms. Judy Kearney
Network Brokers Int'l., Inc.
Airport Industrial Office Park
Building C-1D
145th Ave. & Hook Creek Blvd.
Valley Stream, N.Y. 11581

RE: The tariff classification and marking of garland from China

Dear Ms. Kearney:

In your letter dated May 22, 1996, on behalf of your client Berwick Industries Inc., you requested a tariff classification ruling indicating the status of eligibility for 9802 and the proper country of origin marking requirements for the sample submitted.

The item, "Holiday Classics Ribbon Garland", measures 2 inches in width and 12 feet in length. Similar to velvet in appearance, the item is made of an acrylic fiber flocking which is glued to a base of foam polyethylene/polypropylene backing, hereafter referred to as ribbon. A wire edging is covered with metallic thread. The item will be folded lengthwise and affixed to a display card for retail sale.

According to your letter the garland will be assembled in China of U.S. supplied ribbon and tinsel wire edging. The foreign processing will include cutting the ribbon garland and tinsel wire to length and sewing the tinsel wire edging onto the garland with nylon thread. The garland will then be placed on the display card for export to the U.S.

Subheading 9802.00.80 HTSUS provides for a partial duty exemption for articles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in a condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and

(c) have not been advanced in value or improved in condition except by being assembled and except by operations such as cleaning, lubricating and painting. All three requirements must be satisfied before a component may receive a duty allowance.

As the ribbon and wire edging are cut to length and sewn together in China this office finds that such processing constitutes further fabrication and, in fact, is substantially transformed into a new and different article of commerce. The operations performed abroad are not considered "mere assembly" or incidental. Therefore, the item is precluded from classification under item 9802.00.80 HTSUS.

In addition, if the U.S. materials are provided free or at a reduced cost to the Chinese company, the materials constitute an assist as defined in Section 152 of the Customs Regulations (19 CFR 152.102). Under Section 152 of the Customs Regulations, to the extent that the value of the assist is not otherwise included in the price actually paid or payable for the merchandise, the value of the assist must be added to the price paid or payable for the merchandise in determining the transaction value of the imported merchandise (19 CFR 152.102, 19 CFR 152.103).

The applicable subheading for the "Holiday Classics Ribbon Garland" will be 9505.90.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for festive, carnival or other entertainment articles: confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof. The rate of duty will be free.

In regards to your inquiry for advice on acceptable country of origin marking of the described product we are directed to the marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304). This section 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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in any case 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, 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.

The "Holiday Classics Ribbon Garland" is marked "Berwick PA 18603" on the front of the display card and "Handmade in China of U.S. Ribbon" on the back of the card. Marking in this fashion is not conspicuous or within the realm of close proximity in accordance with the requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Placement of the country of origin must appear "on the same side or surface" in which the U.S. address is located.

It is suggested that in order to comply with Customs regulations you may either remove the reference to "Berwick, PA" or add "Handmade in China of U.S. Ribbon" within close proximity and in lettering of at least a comparable size, on the same side or surface displaying the U.S. address.

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 Alice J. Wong at 212-466-5538.

Sincerely,

Roger J. Silvestri
Director,

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