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NY D83378

November 6, 1998

CLA-2-96:RR:NC:N1:113 D83378


TARIFF NO.: 8470.10.0040; 9608.10.0000

Ms. Connie Freeman
A.W. Fenton, Inc.
6565 Eastland Road
Cleveland, OH 44142

RE: The tariff classification of electronic organizers and pens from Taiwan and China

Dear Ms. Freeman:

In your letter dated October 22, 1998, on behalf of Things Remembered, Inc., you requested a tariff classification ruling.

The merchandise is the Reflections Pen and Electronic Organizer Set. The set contains a ball point pen from Taiwan and an electronic organizer from China. The items are packaged in a cardboard, retail box in Hong Kong. You have also requested a ruling on whether the country of origin marking on the box is sufficient.

It is the opinion of this office that this set is not a set for tariff purposes. The Explanatory Notes, which constitute the official interpretation of the HTSUSA at the international level, state in Note X to Rule 3(b) that the term "goods put up in sets for retail sale" means 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 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.

The set fulfills the requirements of (a) and (c) above, but we believe that it fails (b). The function of the pen does not join that of the organizer in a way that might be interpreted as meeting a particular need or carrying out a specific activity. The pen writes and the organizer does arithmetic and has storing and retrieving functions. The needs and activities are entirely independent of each other.

The applicable subheading for the pen will be 9608.10.0000, Harmonized Tariff Schedule of the United States (HTS), 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 organizer will be 8470.10.0040, Harmonized Tariff Schedule of the United States (HTS), which provides for electronic calculators capable of operation without an external source of electric power and pocket-size data recording, reproducing and displaying machines with calculating functions. The rate of duty will be free.

Regarding the country of origin marking, you have requested whether the proposed method of marking the container in which the set is imported with the country of origin in lieu of marking the article itself is an acceptable country of origin marking for the imported set.
A marked sample container was submitted with your letter for review. The marking you propose appears on the back pf the box, in the lower left hand corner, in letters 4 mm high and in a contrasting color. The marking reads:

Pen Taiwan
Electronic Organizer China
Packaged in Hong Kong

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 case, the ultimate purchaser of the set 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. Accordingly, if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the contents by viewing the container in which it is packaged, the individual items would be excepted from marking under this provision. The pens and calculators which are imported in containers that are marked in the manner described above, are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the articles are imported and sold to the ultimate purchaser in lieu of marking the articles themselves is an acceptable country of origin marking for the imported articles provided the port director is satisfied that the pens and calculators will remain in the marked container until they reach the ultimate purchaser.

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 James Smyth at 212-466-2084.


Robert B. Swierupski

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