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September 13, 1999

CLA-2-96:RR:NC:N1:113 E86815

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.10.0000

Mr. Thomas Kenney
SDV USA
150-10 132nd Avenue
Jamaica, NY 11434

RE: The tariff classification of ballpoint pens from Tunisia

Dear Mr. Kenney:

In your letter dated August 30, 1999, on behalf of Oregon-Maine Manufacturer, you requested a tariff classification ruling.

The sample you provided is a Vuarnet ballpoint pen. The pen is packaged in a small, black, fitted plastic case that is marked “Vuarnet/France.” The pen itself is marked with a slide on label and the words “Vuarnet France, Made in Tunisia.” In our opinion, the pen is not legally marked with the country of origin.

The applicable subheading for the ballpoint pen will be 9608.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for ballpoint pens. The rate of duty will be 0.8 cents each plus 5.4 percent ad valorem.

We recommend that, before importing this product, you contact your local Customs port for detailed advice on correct country-of-origin marking. 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.

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. 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 pen 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 pen by viewing the container in which it is packaged, the individual pen would be excepted from marking under this provision.

Accordingly, marking the container in which the pens are imported and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for the imported pens provided the port director is satisfied that the article will remain in the marked container until it reaches the ultimate purchaser.

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.

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 James Smyth at 212-637-7008.

Sincerely,

Robert B. Swierupski
Director

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