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NY G86338

February 13, 2001

CLA-2-96:RR:NC:SP:221 G86338


TARIFF NO.: 9608.40.8000; 9609.20.2000

Mr. Marc D. Torrence
V. Alexander & Co., Inc.
P.O. Box 291929
Nashville, TN 37229-1929

RE: The tariff classification of clutch pencils from China and lead refills from Japan.

Dear Mr. Torrence:

In your letter dated January 5, 2001, on behalf of Sanford LP, you requested a tariff classification ruling.

Two sample clutch pencils and one box of refill leads were included with your request. The lead in the clutch pencils is extended by depressing a plunger at the top of the pencil, activating a spring that pushes the lead out of the bottom of the barrel, where it is held in place by jaws. The lead is retracted by depressing the plunger and pressing the lead against a firm surface, pushing it back into the barrel. The components for the pencil and for the pencil lead packaging case are produced in China. The refill leads are produced in Japan and shipped in bulk to China. The pencil is assembled in China using the Chinese origin pencil components and the Japanese origin lead. The lead refills will be purchased separately by the consumer. They are shipped in a plastic box holding 12 refill leads of various colors, measuring 0.7 mm in diameter. The samples are being returned as you requested.

The applicable subheading for the clutch pencils will be 9608.40.8000, Harmonized Tariff Schedule of the United States (HTS), which provides for propelling or sliding pencils (for example, mechanical pencils); other. The rate of duty will be free.

The applicable subheading for the replacement pencil leads will be 9609.20.2000, HTS, which provides for pencil leads, black or colored: not over 1.5 mm in maximum cross-sectional dimension. The rate of duty will be free. The pencil is marked with the company name (“Sanford”), the style name (“ish”), and the lead diameter (“0.7mm”) printed in colored letters on the transparent portion of the barrel. The country of origin (“China”) is molded into the clear cap at the top of the barrel. The marking is “blind,” that is, molded into the material without any contrast in color from the background. The box of leads is marked on the front with identifying information printed in contrasting colors on both the box and the label. The country of origin (“China”) is molded into the back of the plastic packaging box without any contrast in color from the white background.

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.

The pencil leads are produced in Japan and shipped to China. Some will be inserted into pencils and others will be packaged for sale as refill leads. The pencil leads lose their identity when they are assembled into the pencils, and the country of origin of the pencils is China. The country of origin of the pencil leads that are merely packaged in China remains Japan. Therefore, the case holding the pencil leads should be marked to indicate Japan, rather than China, as the country of origin of the leads.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

As provided in section 134.41(b), Customs Regulations (19 C.F.R. §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. In HQ 733940, of October 24, 1991, Customs Headquarters described certain factors that need to be considered in determining if the country of origin marking on an article, such as a writing instrument, is conspicuous within the meaning of 19 C.F.R. §134.41 and 19 U.S.C. §1304. Among the factors that should be considered are the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchasers can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background.

No single factor should be considered conclusive by itself in determining whether a marking meets the conspicuous requirement of 19 C.F.R. §134.41 and 19 U.S.C. §1304. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable. Blind stamping, while not a preferred method of marking, may be acceptable when, due to factors such as the size and depth of the imprint and the type and color of material onto which it is stamped, the marking is easy to find and readable without strain.

In applying these factors to the pencils and the case of leads, the blind stamping is virtually illegible to the naked eye. The pencils and leads are not conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. §1304 and 19 C.F.R. Part 134, and the blind stamping is not an acceptable country of origin marking for either product. We suggest marking in a contrasting color such as the present marking of the brand, style and lead size. 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 Joan Mazzola at 212-637-7034.


Robert B. Swierupski

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