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NY K89405




September 17, 2004

MAR-2 RR: NC: 1:108 K89405

CATEGORY: MARKING

Ms. Barbara Clausen
FedEx
205 West Service Road
Champlain, NY 12919

RE: THE COUNTRY OF ORIGIN MARKING and CLASSIFICATION OF CD ROMs.

Dear Ms. Clausen:

This is in response to your letter dated August 23, 2004 and received by this office on September 9, 2004, on behalf of your client Direct Source Special Products, Inc. requesting a ruling on the proposed marking "of two differently packaged audio CDs" imported under two different conditions. For both varying packaged items one will include CDs as the product of Canada and one as the product of the United States. In each instance the package tin will be made in China. A marked sample was submitted for the single CD in its retail tin container. Both the CD and container are marked with their countries of origin along with a United States address. For the packaged 3 CDs with a Christmas ornament the CDs are marked with the country of origin but neither the ornament nor the tin container are marked. Also this ruling will address the classification of said items.

The first item is a single audio CD packaged in a fitted tin case and entitled “The Greatest Christmas Classics”. The second item is 3 audio CDs packaged in a fitted tin case with a plastic Christmas ornament and is untitled.

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.

Section 134.46, Customs Regulations (19CFR 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.

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 contents by viewing the container in which it is packaged, the individual items would be excepted from marking under this provision.

The two packaged audio CDs which are imported in containers that are to be marked in the manner of the individual CD packaged for retail sale sample entitled “The Greatest Christmas Classics”, 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 both CD arrangements are imported with CDs from a foreign country and sold to the ultimate purchaser in lieu of marking the article itself is an acceptable country of origin marking for them, as demonstrated by the marked sample of the single packaged audio CD Rom, provided the port director is satisfied that the articles will remain in their marked containers until they reach the ultimate purchaser.

Questions concerning the marking of items “Made in the U.S.A.” are to be referred to the Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508, as to whether the proposed marking satisfies such requirements.

You have also requested the classification of both packaged audio CDs when the product of a foreign country and also as the product of the United States. The first is a single audio CD packaged in a fitted tin container. It is entitled “The Greatest Christmas Classics”. It contains ten tracks of popular Christmas songs by various artists. It is to be played on a CD player for listening purposes. It should be noted that the CD is composed of only audio content. Classification will be accordingly.

The second item is a composed of three audio CDs packed with a plastic Christmas ornament in a fitted tin case. The CDs are audio only and are to be played on a CD player. The ornament is to be hung on a Christmas tree. You have inquired as to whether this compilation of goods comprises a set.

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 products which are, prima facie, classifiable in different headings.

B. Consist of products put up together to meet a particular 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).

It is the opinion of this office that the compilation of three audio CDs and a plastic Christmas ornament does not comprise a set. It does not meet requirement B for each for the items perform totally unrelated activities in relation to each other. Therefore each item will be classified individually in their appropriate headings.

It should be noted that this office considers the tin containers to be fitted containers in accordance with GRI 5(a), Harmonized Tariff schedule of the United States (HTS).

The applicable subheading for the foreign produced single audio CD entitled “The Greatest Christmas Classics” and the group of three untitled audio CDs will be 8524.32.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for Records, tapes and other recorded media for sound or other similarly recorded phenomena, including matrices and masters for the production of records, but excluding products of chapter 37: Discs for laser reading systems: for reproducing sound only. The rate of duty will be free.

The applicable subheading for the plastic Christmas ornament will be 9505.10.2500, Harmonized Tariff Schedule of the United States (HTS), which provides for Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other. The rate of duty will be free.

The applicable subheading for the audio CDs produced in the United States and merely packaged in a foreign country, will be 9801.00.1055, Harmonized Tariff Schedule of the United States (HTS) which provides for Products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad Articles provided or in chapter 85: Other. The rate of duty will be free.

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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