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NY F82046




February 14, 2000

CLA-2-96:RR:NC:SP:221 F82046

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 9608.10.0000

Mr. Bill Julich
Delmar International Inc.
147-55 175th Street
Jamaica, NY 11434

RE: The classification and country of origin marking of pens from China.

Dear Mr. Julich:

In your letter dated January 17, 2000, you requested a tariff classification ruling.

The sample submitted with your letter is a ball point pen. The pen has the logo “Nascar” imprinted in contrasting colors on the barrel. The top portion of the pen is shaped like a gear shift knob. Pressing on this knob activates a noise that simulates the revving of an automobile engine.

The applicable subheading for the pen with the engine sound top will be 9608.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for ball point pens. The rate of duty will be 0.8 cent each plus 5.4 percent ad valorem.

You have also requested a ruling on whether the proposed marking is acceptable country of origin marking for imported pens. The marking “China” appears in raised letters about 1/16 inch high on the knob portion. The marking is “blind,” that is, in the same color as the background.

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.

As provided in section 134.41(b), Customs Regulations (19 C.F.R. §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 HQ 733940, of October 24, 1991, Customs Headquarters described certain factors that need to be considered in determining if the country of origin marking on an article, such as a pen, is conspicuous within the meaning of 19 C.F.R. §134.41 and 19 U.S.C. §1304. Among the factors that should be considered are the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchaser can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background.

No single factor should be considered conclusive by itself in determining whether a marking meets the conspicuous requirement of 19 C.F.R. §134.41 and 19 U.S.C. §1304. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.

In applying these factors to the instant pen, we find that, while the marking is in a conspicuous location, the size of the marking, about 1/16 inch, is small and difficult to see. The ultimate purchaser is likely to have to strain to see the marking. We also note that the country of origin marking is not in a contrasting color and does not stand out.

The sample pen is not conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. §1304 and 19 C.F.R. Part 134 and the proposed blind marking is not an acceptable country of origin marking for the imported pens. We suggest marking in a contrasting color and in larger print.

Importations of these products might be subject to the provisions of Section 133 of the Customs Regulations if they copy or simulate a trademark, tradename or copyright registered with the United States Customs Service.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 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 Joan Mazzola at 212-637-7034.

Sincerely,

Robert B. Swierupski
Director,

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