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NY K89444





October 5, 2004

CLA-2-39:RR:NC:SP:221 K89444

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 3925.90.0000

Mr. Darrell Sekin Jr.
DJS International Services, Inc.
4215 Gateway Drive, Suite 100
Colleyville, TX 76034

RE: The tariff classification of the “Clothes Storage System” from China.

Dear Mr. Sekin:

In your letter dated September 7, 2004, on behalf of The Container Store, you requested a tariff classification ruling.

A sample was provided with your letter. The Clothes Storage System is a wall mounted foldable clothing rack identified as style 10027228. The rack consists of an ABS plastic mounting and a metal rod on which clothes can be hung. The Clothes System is designed to be secured to a wall by means of the included screws and wall anchors. The plastic mounting can be folded, with the metal rod contained within it, when the storage system is not in use. A cost breakdown was provided in your letter showing the cost of the plastic at $3.25 and the cost of the metal rod at $0.85.

The applicable subheading for the Clothes Hanging System will be 3925.90.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for builders’ ware of plastics, not elsewhere specified or included, other. The rate of duty will be 5.3 percent ad valorem.

The product is imported in a blister package that is marked on the back with the name of the distributor and its address in Canada, followed by the words “Made in China.” This information is shown in English, French and Spanish. The package is printed on the front with marketing information about the use of the system, shown in English, French and Spanish. Each of these paragraphs is followed by the legend “U.S. Patent: 6,464,091 B1,” also appearing in each of the three languages, thus totaling three references to the U.S. patent. These markings are followed by the remarks, “Endorsed by Canadian Innovation Centre.” No country of origin is shown on the front.

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.1304), provides that, unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or 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. Congressional intent in enacting 19 U.S.C. 1304 was that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the good is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will. United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. In addition, section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of the country or locality in which the article was manufactured or produced, appear on an imported article or its container, 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. Customs has ruled that 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 of the locality other than the country of origin appears (HQ 708994, dated April 24, 1978). The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article.

In T.D. 86-129, June 26, 1986, Customs determined that a U.S. patent number on footwear would trigger the requirements of 19 CFR 134.46, because whether or not a potential purchaser would be misled by such reference would depend in large part on the sophistication of the potential purchaser and the degree of scrutiny the purchaser performs to determine the country of origin of the article. The decision further indicated that a definitive rule is necessary to ensure that all ultimate purchasers are properly informed of the country of origin and to provide for uniformity of application of the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR 134.46. In HQ 731305, November 30, 1988, C.S.D. 89-35, U.S. Customs Headquarters indicated that the principles stated in T.D. 86-129 would also apply to other products. In accordance with C.S.D. 89-35, the U.S. reference on the patent registration number invokes the requirements of 19 CFR 134.46.

The marking “Endorsed by Canadian Innovation Centre” also invokes the requirements of 19 CFR 134.46. Consequently, the country of origin marking must appear in close proximity, and in lettering of comparable size, preceded by "Made in," "Product of," or other words of similar meaning.

The marking on the back of the package, with the address of the Canadian distributor followed by the words “Made in China,” complies with the requirements of 19 CFR 134.46. The front of the package must also be marked with the words “Made in China,” “Product of China,” or words of similar meaning, appearing close in proximity and in comparable size lettering to the references “U.S.” and “Canadian.”

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 646-733-3023.

Sincerely,

Robert B. Swierupski
Director,

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