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May 20, 1999

CLA-2-95:RR:NC:SP:225 E81047

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 9503.90.0045

Mr. Tom Gairing
The Little Tikes Company
2180 Barlow Rd.
P.O. Box 2277
Hudson, Ohio 44236?0877

RE: The tariff classification and country of origin marking of toy gardening implements from China

Dear Mr. Gairing:

In your letter dated April 19, 1999, received in this office on April 22, 1999, you requested a tariff classification ruling.

Item 0723 represents a group of toy garden hand tools which include a trowel and cultivator. Both articles are made entirely of plastic. The trowel measures 8 1/2" and the cultivator, with three prongs, measures 8".

Item 0724 is for a child’s watering can. The product is made of plastic and measures approximately 6 1/2" in height and 6 1/4" at its widest point.

Samples of the subject articles were submitted with your inquiry. According to the marketing literature supplied to this office, the gardening tools are intended for use by children ages 2 and up. The items will be imported in bulk and will be sold at retail in an open cardboard display box.

The classification of merchandise under the HTS is governed by the General Rules of Interpretation (GRI’S). GRI 1 of the HTS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ” The Explanatory Notes to Heading 9503 states: "Certain toys . . . may be capable of a limited "use"; but they are generally distinguishable by their size and limited capacity . . . "

Due to the size and construction of the gardening tools described, it is our belief that they are distinguishable as toys designed solely for children’s amusement. The applicable subheading for the toy gardening tools - item 0723 and toy watering cans - item 0724, will be 9503.90.0045, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys: other: other toys and models. The rate of duty will be free.

Additionally, you have requested our opinion in regards to any apparent admissibility problems detected in the merchandise. Upon examination of the toy gardening implements we found the country of origin marking to be quite difficult to read. According to 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.

The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported goods.

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.

The toy gardening implements are marked with raised letters in the same color as the product itself. Due to this same color pattern, the marking is barely visible even upon close examina-tion. This style of marking is known as “blind marking” and does not conform to the marking requirements of Section 304 of the Tariff Act of 1930 as amended (19 U.S.C. §1304). We note that the gardening toys are imported in bulk and sold separately, therefore, each article must be individually marked. It is suggested that, in order to bring your merchandise into compliance, you might try using a contrasting color for the words "Made in China". Of course, alternative methods of marking exist and may be discussed with your local Import Specialist at the proposed port of entry.

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 212-637-7028.

Sincerely,

Robert B. Swierupski
Director,

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