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NY 813386




August 9, 1995

CLA-2-96:S:N:N3:113 813386

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.99.4000

Mr. Joseph A. Pitner
Economy Pen and Pencil Co.
710 Blue Ribbon Parkway
Shelbyville, TN 37160

RE: The tariff classification of pen parts from Germany

Dear Mr. Pitner:

In your letter dated July 24, 1995, you requested a tariff classification ruling.

The merchandise is seven various plastic pen parts. These include: the two ends of the barrel, the center ring, the tip, the clip, and the two parts that comprise the "push button" that pushes the ink cartridge down. After importation, the parts will be assembled with an ink refill and spring of US origin. The pens will then be sold to the promotional market.

In our examination of the merchandise, we assembled the parts along with an ink cartridge and a spring, and it made a complete ball point pen. We therefore conclude that the seven parts are parts of ball point pens. Complete ball point pens are classifiable eo nomine in heading 9608.10.0000, HTS, as ball point pens. Parts of ball point pens are provided for in heading 9608.99.4000, HTS. The United States Customs Service enforces the tariff, but does not set, and cannot modify as you request, the rates of duty as provided in the HTS. These rates may only be modified by legislative action.

The applicable subheading for the pen parts will be 9608.99.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for parts of articles provided for in subheadings 9608.10, 9608.31 and 9608.39 (other than balls for ball point pens). The duty rate will be 0.7 cents each plus 4.9 percent ad valorem.

Furthermore, although you do not address the issue, the sample of the merchandise you provided is not legally marked with the country of origin. U.S. Customs Headquarters has ruled, on a number of occasions (HQ 734053 of September 20, 1991), that the assembly of pens with American components does not constitute a substantial transformation of the parts, and the completed pen must be marked to indicate the country of origin. This is true whether the pens are sold or given away as a promotion. We suggest that you contact your local import specialist for advice on how the items must be marked before you import them. Among other things to consider are :
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.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in any case 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, 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.

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

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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