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NY M83098

May 22, 2006

CLA-2-94:RR:NC:1:108: M83098


TARIFF NO.: 9405.40.8000; 8471.80.1000

Mr. Joseph F. Donohue
Donohue and Donohue
Counsellors at Law
26 Broadway, Ste. 2300
New York, NY 10004-1801

RE: The tariff classification and marking of electric lamps and a USB hub from China.

Dear Mr. Donohue:

In your letter dated April 25, 2006, on behalf of NAS Global Trade Ltd., you requested a tariff classification ruling.

The submitted merchandise consists of the following articles:
an oblong-shaped plastic lamp, which is referred to as the “Magic LED Lamp,” that measures about 9 ½ inches (when not extended) and 15 ¼ inches (when extended) in height by 5 inches and 4 inches at its widest and deepest dimensions, respectively. This lamp is a multifunctional machine that can operate as either a decorative light or a color-changing night-light (contingent upon its dual-light switch), and can also convert to a desk lamp. This merchandise has a liquid-filled translucent container, possessing aquatic components (such as several shells, a starfish, and a type of sea plant, all of which are natural with some further processing), that is finished with top and bottom rectangular-like lamp housings. The bottom lamp housing, incorporating LED lights and an on/off rocker dual-light switch, is affixed to an oval-like base with socket, while the top lamp housing, incorporating 17 LED lights, can be raised and adjusted by means of telescopic, adjustable arm-like extensions for operating as a desk lamp. It is powered by a removable AC/DC adapter.
an oval-shaped auto-sensing plastic night-light, advertised as the Fancy LED Night Light, which measures approximately 4 ¼ inches high by 2 inches at its widest point. This light features a frontal liquid-filled translucent section containing natural shells and a type of natural sea plant (all further processed), as well as artificial fish and an aquatic wall-like backdrop. It also has a bottom lamp portion that incorporates color-changing LED lights, as well as plug blades located at its lower-rear section.
an aqua four-port USB Hub, measuring about 3 ¾ inches at its highest point by 3 ¾ inches across its base diameter, which is a separately circular-housed unit that incorporates four standard female USB ports for accepting Type A plugs and a connecting cable with a male USB Type A plug for connecting to the computer. Based on its construction, it can allow multiple peripheral (up to 4) devices to be connected to the computer simultaneously. At the top of the hub, it has a built-in cup-like holder, which is designed to hold a cell or mobile phone. At the interior base of this unit, there is a circuit board that when sensing an incoming phone call will cause LED lights in the unit to flash for silent signaling. Further, at the front portion of the unit, there is a liquid-filled translucent section, above the circuit board, which contains natural shells and a type of natural sea plant, all further processed, and two artificial fish.

You state that the Magic LED Lamp should be classified as a desk lamp under subheading 9405.20.80, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Electric table, desk, bedside or floor-standing lamps: Other than of base metal. However, since this is a multifunctional machine that can operate in the capacity of different lamps or lights, classification under subheading 9405.20.80, HTS, is precluded, since the desk lamp does not provide the principal function of this multifunctional machine.

The applicable subheading for the Magic LED Lamp and the auto-sensing night-light will be 9405.40.8000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other electric lamps and lighting fittings, other than of base metal. The rate of duty will be 3.9 percent ad valorem.

The applicable subheading for the four-port USB hub will be 8471.80.1000, HTSUS, which provides for “Automatic data processing machines and units thereofOther units of automatic data processing machines: Control or adapter units. The rate of duty will be free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

The importation of merchandise, containing natural articles as in the above-described products, may be subject to regulations or restrictions administered by the U.S. Department of Agriculture, Animal and Plant Health Division (APHIS). You are advised, in regard to obtaining information on these regulations, to contact the aforementioned agency at the following location:

U.S. Department of Agriculture
Plant Protection and Quarantine Permit Unit 4700 River Road, Unit 136
Riverdale, MD 20737-1236
Telephone number: 877-770-599

As presented, the Magic LED Lamp is marked, with a stick-on label, “Made in China” on both sides of its retail-packed box and adjacent to the importer’s US address, which is also on the same label; furthermore, the marking of the country of origin is indicated underneath the base of the lamp with a stick-on label (or can be marked with an approximation of that type of label). The auto-sensing night-light is marked, with a stick-on label, “Made in China” on the lower portion of the user information card, which is included in a retail-blister package. The four-port USB Hub is marked with the printing of “Made in china” [sic] on both sides of its retail-packed box, as well as on a stick-on label affixed underneath the base of the USB hub. It is stated that when imported, in regard to both the Magic LED Lamp and the decorative night-light, the country of origin will be printed on the retail-packed box and the blister-packed card, respectively, and will be of comparable size to the other printing currently on the respective retail-packed box and blister-packed card.

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.

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.

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.

With respect to the Magic LED Lamp’s country of origin appearing next to the importer’s US address, 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 marking of this merchandise (the lamps and the USB hub), as described above, is considered to be conspicuously, legibly and permanently marked when in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

In regard to the above marking of the Magic LED Lamp and the four-port USB hub, you requested whether the above-proposed marking would be acceptable if only the retail-packed cartons were marked, rather than marking both the retail-packed cartons and the individual articles within these cartons. It was stated that this merchandise, including the auto-sensing night-light, will be imported and sold to the ultimate purchaser in the above-noted retail boxes and blister packaging.

In conjunction with the above marking requirements, 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 Magic LED Lamp and the USB hub 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 Magic LED Lamp and the USB hub by viewing the containers in which they are packaged, the individual articles would be excepted from marking under this provision.

Therefore, marking the retail-packed cartons in which the Magic LED Lamp and USB hub are imported and sold to the ultimate purchaser in lieu of marking the articles themselves is an acceptable country of origin marking for this imported merchandise provided the port director is satisfied that the article will remain in the marked retail-packed boxes 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 Michael Contino at 646-733-3014.


Robert B. Swierupski

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