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NY L84158

May 13, 2005

CLA-2-39:RR:NC:N2:221 L84158


TARIFF NO.: 3923.50.0000

Ms. Rose Beltran
Alliance Customs Clearance, Inc.
100 Oceangate, Suite P-200
Long Beach, CA 90802

RE: The tariff classification of an automatic candle extinguisher from China.

Dear Ms Beltran:

In your letter dated April 14, 2005, on behalf of The Candlewatch Company, you requested a tariff classification ruling.

The sample submitted with your request is a decorative lid for a jar candle. It is intended to replace the glass stopper that is included with this type of candle. The hinged lid is made of a plastic resin that you identify as polyurethane. The resin is coated with a hard enamel finish that gives the appearance of either brass or silver. The bottom portion of the lid forms a decorative rim around the glass jar. The top portion includes a decorative knob by which the lid may be opened. A timing mechanism is built into the back of the lid. The timer may be set to any time interval from one half hour to three hours. The lid remains open for the length of time set on the device, at which time the lid automatically closes, extinguishing the flame. The timing mechanism does not emit any audible signal when the time interval has expired, nor does it make or break an electric circuit. The lid may also be closed by depressing a button on the side of the lid.

The applicable subheading for the automatic extinguishing candle lid will be 3923.50.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for stoppers, lids, caps and other closures, of plastics. The rate of duty will be 5.3 percent ad valorem.

The bottom of the lid is marked with the country of origin, China. However, the lid is sold in a printed marketing box that does not indicate the country of origin. In addition, the bottom of the box is marked with the domestic address of The Candlewatch Company, with no reference to the country of origin.

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 imported candle lid is the consumer who purchases the product at retail.

The marking requirements for unsealed disposable containers of imported merchandise are set forth in section 134.24(d), Customs Regulations (19 CFR 134.24(d)). This section provides that "if the container is normally opened by the ultimate purchaser prior to purchase, only the article need be marked." The imported lid is the type of article that a prospective purchaser might not take out of its container to examine prior to purchase, and therefore the printed box is required to be marked with the country of origin.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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 packaging box must include the words “Made in China,” or words of similar meaning, on the same side as the domestic address and in comparable size lettering.

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 646-733-3023.


Robert B. Swierupski

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