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NY H81195

June 5, 2001

CLA-2-98:RR:NC:N2:221 H81195


TARIFF NO.: 9802.00.80

Mr. Marc D. Torrence
V. Alexander & Co., Inc.
22 Century Blvd., Suite 510
Nashville, TN 37214-3650

RE: The applicability of 9802.00.80, HTS, to ball point pens manufactured in Japan with U.S. produced refill cartridges.

Dear Mr. Torrence:

In your letter dated May 11, 2001, you requested a ruling on behalf of Sanford LP on the applicability of subheading 9802.00.80, HTS, to ball point pens manufactured in Japan using U.S. produced refills.

The refills will be shipped to various pen manufacturers in Japan. In Japan, the pen manufacturer will produce pens using the U.S. made refills and Japanese pen components. The assembly process consists of screwing the refill into the barrel, clamping the clip to the body, pressing rings or caps onto the body, and screwing the two halves of the pen body together. Samples of various types of pens were submitted with your letter, and are being returned as you requested.

You request a ruling as to whether the assembled pen qualifies for reduced duty in subheading 9802.00.80, HTS. Subheading 9802.00.80, HTS, provides a partial duty exemption for articles assembled abroad in whole or in part of fabricated components, the product of the United States, which were exported in condition ready for assembly without further fabrication, have not lost their physical identity in such articles by change in form, shape or otherwise, and have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubrication, and painting.

All three requirements of subheading 9802.00.80, HTS, must be satisfied before a component may receive a duty allowance. An article entered under this tariff provision is subject to duty upon the full value of the imported assembled article, less the cost or value of such U.S. components, upon compliance with the documentary requirements of section 10.24, Customs Regulations (19 CFR 10.24).

Section 10.14 (a), Customs Regulations [19 CFR 10.14 (a)], states that the components must be in condition ready for assembly without further fabrication at the time of their exportation from the United States to qualify for the exemption. Components will not lose their entitlement to the exemption by being subjected to operations incidental to the assembly either before, during, or after their assembly with other components. Section 10.16 (a) Customs Regulations [19 CFR 10.16 (a)] provides that the assembly operation performed abroad may consist of any method used to join or fit together solid components, such as welding, soldering, riveting, force fitting, gluing, laminating, sewing, or the use of fasteners. Operations incidental to the assembly are not considered further fabrication operations if they are of a minor nature.

In the instant case, the operations performed in Japan are considered to be acceptable assembly operations. Therefore, the pens may enter under subheading 9802.00.80, HTS, with allowances in duty for the cost or value of the U.S. produced refill cartridges, upon compliance with the documentary requirements of 19 CFR 10.24.

Six samples of pens were included with your request. Three of the pens are imprinted with the marking “Japan” in contrasting color in letters approximately 1 mm high. The other three pens are blind stamped with the country of origin (one pen shows “Japan,” two pens show “Korea”) in letters approximately 1 mm high that have been molded into the material without any contrast in color from the 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.

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 pen, 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 purchaser 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.

In applying these factors to the instant pens, we find that, while the marking is in a conspicuous location, the size of the lettering is so small as to be virtually impossible to see on both the pens that are blind stamped and the pens that are marked in a contrasting color. Thus, the sample pens 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 current marking is not an acceptable country of origin marking for the imported pens. We suggest marking in a contrasting color in significantly larger print. We note that NY Ruling F89219, dated July 25, 2000, issued to V. Alexander & Co. on behalf of Sanford LP, notified both parties that marking in contrasting color in letters of 1 mm in height was not acceptable marking.

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. If the pens will be imported on a blister card or in some other sealed packaging container, marking on the container to indicate the country of origin of the pen will satisfy the marking requirements.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 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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