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HQ 084252


July 28, 1989

CLA-2 C0:R:C:G 084252 jlj 839017

CATEGORY: CLASSIFICATION

TARIFF: N0.: 4910.00.20; 4910.00.40; 4910.00.60

Mr. Michael Di Palo
W. R. Filbin & Co., Inc.
1010 Niagara Street
Buffalo, New York 14213

RE: Tariff classificaton of a wall calendar and a marker

Dear Mr. Di Palo:

You requested a tariff classification for a packaged wall calendar and a marker imported from Canada on behalf of your client, Off the Wall of Ontario, Canada. You submitted a sample along with your request. You also inquired about country of origin marking requirements and eligibility under the United States-Canada Free Trade Agreement (CFTA).

FACTS:

The product consists of two items put up for retail sale in a plastic bag, the top of which is stapled shut with a printed hanger card. The main component, the "Off the Wall 4 month Perpetual Planner," is a 66 centimeter by 87 centimeter piece of paper printed on one side with multicolored grids representing four months. Although the columns are headed with days of the week, the months are not specified, and the individual rectangles representing single days are not numbered. This printed sheet is laminated on both sides with transparent plastic film. The calendar is designed to be mounted on a wall. The user fills in dates and jots down activities, reminders and other data on the calendar.

The other component supplied in the packaging, a marking pen containing water soluble ink, is to be used for writing on the calendar, allowing the creation of writing which may later be erased from the plastic surface of the calendar by wiping off with a damp cloth.

The plastic packaging, the hanger card and the wall calendar are made in Canada. The marker is made in West Germany.

ISSUE:

What is the tariff classification of the packaged wall calendar and marker?

LAW AND ANALYSIS:

The submitted sample is a set put up for retail sale under General Rule of Interpretation (GRI) 3(b), HTSUSA. It must be classified according to its essential character, which is imparted by the wall calendar. The imported set, as represented by the packaged sample, is therefore classified under the provision for calendars of any kind, printed, including calendar blocks: printed on paper or paperboard in whole or in part by a lithographic process, in subheading 4910.00.20, HTSUSA, if not over 0.51 millimeters in thickness, or in subheading 4910.00.40, HTSUSA, if over 0.51 millimeters in thickness. If the calendar is printed by a process other than lithography, it is classified in subheading 4910.00.60, HTSUSA. Subheading 4910.00.20, HTSUSA, is duty-free. Subheading 4910.00.40, HTSUSA, is dutiable at the rate of 4.4 cents per kilogram. Subheading 4910.00.60, HTSUSA, is dutiable at the rate of 3 percent ad valorem. Merchandise originating in Canada and classified in subheading 4910.00.40, HTSUSA, is eligible for a 3.5 cents per kilogram duty rate under the CFTA if all applicable regulations are met. Merchandise originating in Canada and classified in subheading 4910.00.60, HTSUSA, is eligible for a 2.4 percent ad valorem duty rate under the CFTA if all applicable regulations are met.

With regard to country of origin marking requirements, if this product is imported packaged in the plastic wrapping and is sold only in this form, the hanger card should be marked to indicate the origin of both components (i.e., calendar made in Canada, marking pen made in West Germany). If the components are imported separately or are sold separately, both the calendar and the marking pen must be individually marked with their country of origin.

With regard to this product's eligibility under the CFTA, General Note 3(c)(vii)(C)(1), HTSUSA, specifically says that goods shall not be considered to originate in the territory of Canada merely by virtue of having undergone a simple packaging operation. See Section 202(a)(2)(A) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, Public Law 100- 449, 102 Stat. 1851 (1988), which is the statutory basis for the cited General Note. This means that the West German marking pen would preclude eligibility under the CFTA. If a Canadian pen was substituted, the whole set would be eligible for the lower duty rates under the CFTA.

HOLDING:

The packaged wall calendar and marking pen are a set. The set is classified in subheading 4910.00.20, HTSUSA, in subheading 4910.00.40, HTSUSA, or in subheading 4910.00.60, HTSUSA, depending upon the method of printing used and the thickness of the paper. In view of the fact that the West German marking pen is included in the instant merchandise, it is not eligible for the reduced duty rates under the CFTA.

Sincerely,

John Durant, Director

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