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NY K89849




October 6, 2004
CLA-2-95:RR:NC:SP:225 K89849

CATEGORY: CLASSIFICATION

TARIFF NO. 9505.10.1500; 9801.00.1097

Ms. Darlene DiBernardo
Deringer Logistics Consulting Group
1 Lincoln Blvd., Suite 225
Rouses Point, NY 12979

RE: The tariff classification of a wooden nutcracker and milk chocolate candy from China.

Dear Ms. DiBernardo:

In your letter dated September 7, 2004, on behalf of your client GMV Chocolates, you requested a classification ruling.

You have submitted a wooden nutcracker figure that measures approximately 12 inches high. The nutcracker figure is wearing a crown on his head. The head portion of the figure opens so the inside of the upper body may be filled with candy. The nutcracker is an accepted symbol used for decorations in the Christmas holiday season. The country of origin for this article is China.

Your letter of inquiry states that the nutcracker will be filled with a pouch of foil wrapped pure milk chocolate “nutcracker” shaped candies. The milk chocolate candy contains sugar, milk, cocoa butter, unsweetened chocolate, soy lecithin (an emulsifier), vanillin (an artificial flavor). The country of origin for the chocolate candy is the United States.

We note that the nutcracker sample was not marked with the country of origin. 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.

The applicable subheading for the wooden nutcracker figure will be 9505.10.1500, Harmonized Tariff Schedule of the United States (HTS), which provides for articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Of wood. The rate of duty will be free.

The milk chocolate candy, a product of the United States, may be eligible for entry as an American good returned. If the documentary requirements of 19 C.F.R. §10.1 are satisfied, the applicable subheading for this item will be 9801.00.1097, 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...other...other. Products classified in subheading 9801.00.1097 are free of duty.

If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. §1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the U.S.

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 Wong at 646-733-2036.

Sincerely,

Robert B. Swierupski
Director,

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