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NY H86261




January 9, 2002

CLA-2-96:RR:NC:SP:221 H86261

CATEGORY: CLASSIFICATION

TARIFF NO.: 9609.10.0000; 8214.10.0000

Ms. Michelle Strack
Expediters International of Washington, Inc. 870 Ashland Avenue
Folcroft, PA 19032

RE: The tariff classification of colored pencils and a pencil sharpener from China.

Dear Ms. Strack:

In your letter dated December 3, 2001, on behalf of Dimensions Acquisition LLC, you requested a tariff classification ruling.

A sample was provided with your letter. The sample consists of 12 colored pencils blister packed with a hand-held nonmechanical pencil sharpener. After importation, the pencils and sharpener will be added to other items, such as drawing sheets. The pencils and sharpener are not packaged for retail sale at the time of importation, and therefore, are not classified together.

The applicable subheading for the colored pencils will be 9609.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalkspencils and crayons, with leads encased in a rigid sheath. The rate of duty will be 14 cents per gross plus 4.3 percent ad valorem.

The applicable subheading for the pencil sharpener will be 8214.10.0000, HTS, which provides for paper knives...pencil sharpeners (nonmechanical) and blades and other parts thereof. The rate of duty will be 0.3 cents each plus 4.2 percent ad valorem. Cased pencils from China may be subject to anti-dumping duties. Before you import, we recommend that you contact the International Trade Commission at:

Office of Antidumping Investigations
Import Administration
International Trade Administration
U.S. Department of Commerce
14th Street and Constitution Avenue, N.W. Washington, DC 20230

The pencils and sharpener are not marked to indicate their country of origin. The pencils and sharpener are blister packed onto a card. After importation the card is packaged with a printed board to be colored, a numbered chart and a full color picture to form a color-by-number set. The coloring set contains no reference to the country of origin of the pencils and sharpener. Rather, it is marked “Made in U.S.A” and includes the domestic address of the importer.

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 colored pencils and pencil sharpener is the consumer who purchases the complete packaged color-by-number set at retail. The pencils and sharpener do not lose their identity as a result of the packaging into the coloring set. Therefore, the complete color-by-number set must be marked to show that the pencils and sharpener are made in China. The current marking is considered to be misleading.

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. However, since the pencils and sharpener are not imported in their marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the port director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized at the discretion of the port director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, if the port director is satisfied that the imported pencils and sharpener will be repacked into a container indicating their country of origin, and that the other conditions set forth in 19 CFR 134.34 are met, the port director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported card with the pencils and sharpener will not be required.

Alternatively, the marking requirements will be satisfied if the card on which the pencils and sharpener are blister packed is marked with the country of origin, and the port director is satisfied that the marking on the card will be clearly visible after the card is packaged with the other components into the complete coloring set.

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. The country of origin of the pencils and sharpener should be printed in close proximity to the domestic address.

The Federal Trade Commission has primary responsibility under statutes to approve whether a "Made in USA" claim can be made. However, we note that the Federal Trade Commission generally prohibits the marking of an article "Made in U.S.A." if a significant part of that article is of foreign origin. We therefore recommend that you contact the Federal Trade Commission, Division of Enforcement, located at 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508, concerning their requirements on U.S. marking.

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 Joan Mazzola at 212-637-7034.

Sincerely,

Robert B. Swierupski
Director,

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