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NY K82148




January 6, 2004
CLA-2-95:RR:NC:SP:225 K82148

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.0060; 9503.49.0000

Barbara Wierbicki
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: The tariff classification of Barbie Fashion Doll Pens from China

Dear Ms. Wierbicki:

In your letter dated December 30, 2003 you requested a tariff classification ruling on behalf of your client Tara Toy Corporation.

The item, assortment number 33051 - Barbie Fashion Doll Pens, consists of a series of eight dolls made of plastic. The names are Bride, Cheerleader, Mermaid, Trendy, School Girl, Beach, and Ballerina Barbie. The hair is rooted. The garment on the upper torso is plastic and molded on when the figure is being manufactured. The lower torso has a textile garment that can not be removed. A hole is drilled into the bottom of the feet and a ballpoint pen (measuring 2 inches tip to end) is inserted. The tip of the pen is inserted into the hole in the accompanying stand and acts as an anchor to hold the doll upright and in place on the stand. The pen is not visible when the doll is placed into the stand. No refills will be sold for the product.

Although the product can be considered a functioning pen, it is the opinion of this office that the essential character of the item is that it is a representation of Barbie in many different outfits. It is highly unlikely that the product will be thrown out when the pen runs dry. The samples are returned as requested.

The packaging for the product looks like a doll display case. The United States address of Tara Toy Corporation is quite visible in black ink against the traditional Barbie pink. However, the country of origin marking, China, is in a smaller print and uses white ink which is difficult to see.

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.

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 purchasers 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 and use of white ink creates marking that is almost illegible to the naked eye. 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 presented blind marking is not an acceptable country of origin marking for the imported pens. We suggest marking in a contrasting color such as the present marking of the company name and address.

The applicable subheading for Bride, Cheerleader, Trendy, School Girl, Beach, and Ballerina Barbie of the assortment will be 9502.10.0060, Harmonized Tariff Schedule of the United States (HTS), which provides for Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other. The rate of duty will be free.

The applicable subheading for the Mermaid Barbie of the assortment will be 9503.49.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for Other toys;: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other. The rate of duty will be free.

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 646-733-3026.

Sincerely,

Robert B. Swierupski
Director,

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