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NY N019022




November 13, 2007

CLA-2-39:OT:RR:NC:N2:222

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.10.3000, 4818.30.0000, 8215.99.5000

Ms. Debbie Bell
Bealls Department Stores, Inc.
P.O. Box 25207
Bradenton, FL 34206-5207

RE: The tariff classification of a plastic tray, paper napkins and stainless steel spreaders from China

Dear Ms. Bell:

In your letter dated October 22, 2007 you requested a tariff classification ruling.

The submitted sample is identified as a Hostess Gift Set, Style# ZP271206. It includes a serving tray, made of melamine plastic, two piles of paper napkins, each containing 20 napkins and wrapped in clear plastic and two stainless steel spreaders, each with a handle that is covered by three large glass beads.

The napkins are decorated with drawings of a blue bird on a tree limb and some leaves. The tray is decorated with several birds, eggs and leaves. In addition, you have submitted illustrations of three other items, each also identified as a Hostess Gift Set. Each of these items are comprised of the exact same components, but the napkins and tray are decorated with different themes as follows: Style# ZP271121 is decorated with a Florida theme, Style# ZP271291 is decorated with a Home/Family theme with sentiments and Style# ZP27829 is decorated with a Garden theme. Each of the four styles is packaged together for retail sale. As you requested, the sample will be returned to you.

You have suggested that each of these items should be classified under 3924.10.3000 as a set. However, we do not agree that all of these items are correctly classified in the provision that you suggest.

The Explanatory Notes to the Harmonized Commodity Description and Coding System, although not legally binding, are the official interpretation of the tariff at the international level. In applying the provisions of the Harmonized Tariff Schedule of the United States (HTSUS), Customs will look to the Explanatory Notes for guidance. In determining whether two or more articles imported together constitute a “set put up for retail sale” and are, therefore, classifiable under a single tariff provision, Explanatory Note X for General Rule of Interpretation (GRI) 3(b) provides the criteria as to whether the goods: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles 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 directly to users without repacking.

In this case, the subject articles meet criteria (a) and (c) but do not meet criteria (b). It is the opinion of this office that the tray, the napkins and the spreaders are not products or articles that are put up together to meet a particular need or carry out a specific activity. Therefore, these three items must be classified separately.

The applicable subheading for the melamine trays will be 3924.10.3000, HTSUS, which provides for tableware, kitchenwareof plastics: tableware and kitchenware: trays. The rate of duty will be 5.3 percent ad valorem.

The applicable subheading for the paper napkins will be 4818.30.0000, HTSUS, which provides fortable napkinsof paper pulp, paper, cellulose wadding or webs of cellulose fibers: tablecloths and table napkins. The rate of duty will be free.

The applicable subheading for the stainless steel spreaders with glass beaded handles will be 8215.99.5000, HTSUS, which provides for spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: other: other: other (including parts). The rate of duty will be 5.3 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

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.

Section 134.46, Customs Regulations (19 CFR 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 the instant case, each of the two piles of paper napkins are wrapped in plastic material that is printed with the words “Cypress Home, Richmond VA 23225” as well as the words “Food safe ink manufactured in Denmark. Printed in China.”

In such a case, there must 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. In order to satisfy the close proximity requirement, the country of origin marking of the napkins must appear on the same side or surface of the plastic wrapping in which the name or locality other than the actual country of origin appears.

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 Gary Kalus at 646-733-7055.

Sincerely,

Robert B. Swierupski
Director,

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