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NY B83976




April 25, 1997

CLA-2:RR:NC:SP:225 B83976

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 9503.90.0030; 9503.90.0070

Mr. Brent Reider
ITG Int'l. Trade Group, Inc.
Postal Drawer 21877
Columbus, Ohio 43221-0877

RE: The tariff classification and country of origin marking for a toy disc and toy part from China

Dear Mr. Reider:

In your letter dated March 31, 1997, you requested a tariff classification ruling on behalf of your client Fi-Shock, Inc.

The submitted samples include a "Lighted Flying Disc" and a "Light Assembly" unit. Item #1, the "Lighted Flying Disc" is made up of a molded plastic disc which incorporates four tiny LED lights located around the rim of the disc. The article functions on one 9 Volt battery which is not included. A compartment for the battery is found on the underside (center area) of the disc. The article is propelled into the air by the motion of swinging one's arm and releasing the disc. It is primarily designed for use outdoors and specifically to accentuate use at night.

Item #2, the "Light Assembly Only" is composed of a battery connector, switch, LED and resistor. The entire unit is prefabricated for incorporation with the "Lighted Flying Disc" upon importation to the U.S.A. You state in your letter that the "light assembly is made exclusively for the lighted flying disc, and therefore has no specific identity of its own." Based upon this information and the physical construction of the light assembly unit we believe it is principally used with the lighted disc and would qualify as a toy part for tariff classification purposes.

The applicable subheading for the "Lighted Flying Disc" will be 9503.90.0030, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys (except models), not having a spring mechanism. The rate of duty will be free.

The applicable subheading for the "Light Assembly" unit will be 9503.90.0070, (HTS), which provides for other toys: reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof: other: parts and accessories. The rate of duty will be free.

In addition to classification, your letter also requested a ruling on the proper country of origin marking requirements for your products. This office notes that the product is currently being made in the U.S.A. and, therefore, the sample submitted is marked to reflect this and not the proposed country of origin. Although you indicate that a stick-on label reading "Made In China" will be placed on the underside of the disc, a sample of the actual label was not provided.

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.

In the event that your client intends to print their company address, which is a U.S. address, on a package similar to the one provided, you should consider the following additional requirements:

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.

With reference to marking the "Light Assembly" 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. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported "Light Assembly" is substantially transformed as a result of the U.S. processing, and therefore the U.S. manufacturer is the ultimate purchaser of the imported "Light Assembly" and under 19 CFR 134.35 only the containers which reach the ultimate purchaser are required to be marked with the country of origin "Made in China".

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 Alice J. Wong at 212-466-5538.

Sincerely,

Gwenn Klein Kirschner
Chief, Special Products Branch

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