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NY F80517





January 12, 2000

CLA-2-38:RR:NC:2:238 F80517

CATEGORY: CLASSIFICATION

TARIFF NO.: 3808.10.5000

Ms. Linda Quinn
Lynx International, Inc.
1942 Shawnee Road
Eagen, MN 55122

RE: The tariff classification and country of origin marking for the Cutter Mosquito Coil with Fresh Scent Candle and Cutter Mosquito Coil and Fresh Scent Candle Refills

Dear Ms. Quinn:

In your letter dated November 18, 1999, on behalf of your client, Chemisco Division of United Industries, you requested a tariff classification and country of origin marking ruling.

The first submitted sample, the Cutter Mosquito Coil with Fresh Scent Candle, consists of a securely closed, paperboard container, with a printed label, containing the following items: a shallow, green-colored, reusable, clay-like “pot,” approximating the shape of a triangle, with a matching, bone-colored cover; a plastic packet containing four mosquito coils, each of which is impregnated with an allethrin-type insecticide; and four scented candles, each fitted with a metal holder, which you refer to as “tea lights.” The pot has a small piece of metal embedded in it, which serves to hold the coil in place. The cover contains six openings, which serve to vent the smoke produced by a smoldering mosquito coil (after being lit). The cover also contains a cylindrical depression at its center, which is designed to hold a single candle in place. An adhesive label on the bottom of the pot designates the pot’s country of origin.as follows: “Pot made in China.” It is our understanding that the sample, as submitted, constitutes the product that will actually be offered for retail sale.

You indicate the following in your letter: “The prospective items will be imported from China. The coils will originate in Italy and the tea lights will originate in Hong Kong. They will be imported from Hong Kong to China under an import license for the final packaging process.” The printed label on the paperboard container claims that the product “ offers the superior protection of a coil and the light ambience of a fresh scent candle.” The label further states that the pot “ has been designed for use with Cutter Mosquito Coil With Fresh Scent Candle refills only,” and that “Cutter will not be held responsible for damage, injury or poor performance caused by use of other mosquito coils and/or scented candle refills.” Although neither the coils nor the candles are marked with their country of origin, the countries of origin for the coils, pot, and candles, respectively, appear on the printed label, as follows: “Coils made in Italy. Pot made in China. Candles made in Hong Kong.“ Furthermore, we note that these country of origin designations are in close proximity to and the same size as other wording on the label indicating that the product was “Made for Spectrum, Division of United Industries Corporation, P.O. Box 15842, St. Louis, MO 63114-0842.” Finally the words, “For outdoor use only” appear on both the label and the front of the container.

The second submitted sample, Cutter Mosquito Coil and Fresh Scent Candle Refills, consists of a paperboard box containing four mosquito coils in a sealed, plastic packet, and four scented candles, each fitted with a metal holder. Both the coils and candles are identical in every respect to those described above for the first product, and are, in fact, intended for use, as refills, with the (reusable) pot and cover described above. As with the first submitted sample, it is our understanding that the “refill” sample, as submitted, constitutes the product that will actually be offered for retail sale. Like the first product, although neither the coils nor the candles are marked with their country of origin, the countries of origin for the coils and candles, respectively, appear on the box’s printed label, as follows: “Coils made in Italy. Candles made in Hong Kong.” Furthermore (again like the first product), these country of origin designations are in close proximity to and the same size as other wording on the label indicating that the product was “Made for Spectrum, Division of United Industries Corporation, P.O. Box 15842, St. Louis, MO 63114-0842.” Finally the words, “For outdoor use only,” appear on both the label and the front of the box.

In our opinion, the (reusable) pot and cover, coils, and candles making up the first product, as well as the coils and candles making up the refills (used in conjunction with the reusable pot and cover), are clearly intended for use together for a single purpose or activity, namely: to repel insects outdoors. Furthermore, we find that any illumination provided by the scented candles would clearly be subsidiary to their primary function of masking the odor produced by the smoldering mosquito coil, by means of imparting a pleasant scent to the smoke. Accordingly, pursuant to Rule 3(b) of the General Rules of Interpretation, HTS, we believe that both of the subject products qualify as “goods put up in sets for retail sale,” with the mosquito coils being the component which gives each product its essential character.

The samples which you submitted are being returned as requested. The applicable subheading for the two subject products will be 3808.10.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for "Insecticides, , put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): Insecticides: Other: Other: Other." The rate of duty will be 5 percent ad valorem.

This merchandise may be subject to the requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which is administered by the U.S. Environmental Protection Agency, Office of Pesticide Programs. You may contact them at 401 M Street, S.W., Washington, DC 20460, telephone number (703) 305-7092.

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 both subject products is the consumer who purchases them 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 components making up each of the subject products by viewing the container in which each product is packaged, the individual components would be excepted from marking under this provision.

Components comprising “goods put up in sets for retail sale,” which are imported in containers that are marked in the manner described above, are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the components comprising each of the subject kits are imported and sold to the ultimate purchaser, in lieu of marking the components of each kit, is an acceptable country of origin marking for the imported products, provided the port director is satisfied that each of the subject products will remain in its 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.

In our opinion, the country of origin marking appearing on the paperboard container of each of the subject products, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the components comprising each of the imported products.

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 Harvey Kuperstein at 212-637-7068.

Sincerely,

Robert B. Swierupski

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