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NY K84918




April 5, 2004
CLA-2-85:RR:NC:1:108 K84918

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 8520.90.0080

Mr. Herbert J. Lynch
Sullivan & Lynch, P.C.
Attorneys and Counselors at Law
Inner Tech Park
56 Roland street, Suite 303
Boston, Massachusetts 02129-1223

RE: The tariff classification and marking of an audio recording device from China.

Dear Mr. Lynch:

In your letter dated March 29, 2004, on behalf of your client Talking Rx, Inc., you requested a tariff classification ruling and a marking determination.

The item in question is denoted as the Talking Rx Digital Recording Device (sample provided). This item is designed to fit a standard medical prescription container. It allows the user to directly record a verbal instruction that can be replayed when the user is prepared to take their prescription. It has sufficient recording capability for a detailed verbal instruction for the proper use of the prescription. The recording is stored on a small chip and can be used to re-record over multiple occasions.

The Talking Rx is packaged for retail sale with a plastic stylus for accessing the on button, batteries and written instructions. It has been indicated that it will be imported in its retail package that also denotes the United States address of the distributor.

Explanatory Note X to GRI 3b provides for the purpose of this rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:

A. Consist of at least two articles which are, prima facie, classifiable in different headings.

B. Consist of products put up together to meet a particular need or carry out a specific activity; and

C. Are put up in a manner suitable for sale to users without repackaging (e.g. in boxes or cases or on boards).

All of the aforementioned articles are prima facie classifiable in different headings. Together each enables the user to perform the audio recording and replay function. Based upon the supplied sample it is evident to this office that it represents the imported packaging that will be sold at retail to the ultimate purchaser. Therefore it is the opinion of this office that the items packaged together to constitute a set in accordance with Explanatory Note X.

In accordance, in part, with GRI 3b goods put up in sets for retail sale, which cannot be classified by reference to GRI 3a, shall be classified as if they consisted of the material or component which gives them their essential character.

EN VIII to GRI 3b states that the factor, which determines essential character, will vary as between different kinds of goods. It may for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the goods.

Based upon the nature of the components and their use it is the opinion of this office that the Rx Digital recording Device imparts the essential character to this set. It is the reason for the purchase of the set and it performs the dominant role of all the components.

The applicable subheading for the Talking Rx Digital Recording Device Set will be 8520.90.0080, Harmonized Tariff Schedule of the United States (HTS), which provides for Magnetic tape recorders and other sound recording apparatus, whether or not incorporating a sound reproducing device: Other Other. The rate of duty will be free.

You have also requested whether the proposed method of marking the container in which the Rx Digital Recording device is imported with the country of origin in lieu of marking the article itself is an acceptable country of origin marking for the imported article.

The marking statute, section 304, Tariff Act of 1930, as amended (19U.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 mane 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 Rx Digital Recording device is the consumer who purchases the product at retail.

An article is excepted from marking under (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 Rx Digital Recording device by viewing the container in which it is packaged, the individual items would be excepted from marking under this provision.

The Rx Digital Recording devices, 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 Rx Digital Recording devices 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 RX Digital Recording device 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”, “American”, the letters “USA,” 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 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 proposed marking of the imported Rx Digital Recording device, in its container, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR 134 and is an acceptable country of origin marking for the imported RX Digital Recording device.

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 Michael Contino at 646-733-3014.

Sincerely,

Robert B. Swierupski
Director,

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