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NY N020361




December 19, 2007

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

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9980; 9017.20.8080; 4911.91.4040

Mr. Joseph R. Hoffacker
Barthco Trade Consultants
5101 S. Broad Street
Philadelphia, PA 19112-1404

RE: The tariff classification of various “Art Fun Cases” from China.

Dear Mr. Hoffacker:

In your letter dated November 28, 2007, on behalf of K.B. Toys of Massachusetts, Inc., you requested a tariff classification ruling.

Three samples were provided with your letter. Item #89355 is the “Stencil Art Fun Case.” It consists of 6 plastic stencils, 5 sheets of blank paper and 4 felt tip pens packaged for retail sale in a molded plastic carry and storage case. Item #89415 is the “Sponge Art Fun Case.” It consists of 6 shaped sponge plastic paint applicators, 6 pots of paint, 5 sheets of blank paper and 1 brush packaged for retail sale in a molded plastic carry and storage case. Item #89425 is the “Paint By Number Fun Case.” It consists of 6 crayons, 4 felt tip pens and 4 printed cards packaged for retail sale in a molded plastic carry and storage case. Contrary to its name, the Paint By Number Fun Case does not contain any paint.

The samples are being returned as you requested.

The Explanatory Notes to the Harmonized Tariff System provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Explanatory Note X to GRI 3(b) provides that the term "goods put up in sets for retail sale" means goods that: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of 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. Goods classifiable under GRI 3(b) are classified as if they consisted of the material or component which gives them their essential character, which may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the article. GRI 3(c) provides that when goods cannot be classified by reference to GRI 3(a) or 3(b), they are to be classified in the heading that occurs last in numerical order among those which equally merit consideration.

The three above Fun Art Cases and their contents will be classified as sets. The essential character of the Stencil Art Fun case is imparted by the stencils. The essential character of the Sponge Art Case is imparted by the sponge paint applicators. The essential character of the Paint By Number set is imparted by the printed cards.

The applicable subheading for the Sponge Art Fun Case will be 3926.90.9980, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other articles of plastics, other. The rate of duty will be 5.3 percent ad valorem.

The applicable subheading for the Stencil Art Fun Case will be 9017.20.8080, HTSUS, which provides for other drawing or marking-out instruments (for example, drafting machines, pantographs, protractors, drawing sets). The rate of duty will be 4.6 percent ad valorem.

The applicable subheading for the Paint By Number Fun Case will be 4911.91.4040, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other (than certain enumerated) printed pictures, designs and photographs. The rate of duty will be free.

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 C.F.R. §134.46), requires that in any case 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, 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.

The samples of the Fun Art Cases do not meet the country of origin marking requirements. The molded plastic cases are marked “Made in China” in the lower right hand corner. The marking, however, is very small. In addition, the dark blue background provides little contrast to the marking, which is in black letters. Finally, there is a Hong Kong address in larger and bolder letters set against a contrasting light background in the lower center of the case. This marking could lead one to conclude that the products are made in Hong Kong. The words “Made in China” should appear in close proximity to the Hong Kong address in letters approximately equal in size to those of the Hong Kong address.

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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