CLA-2:CO:R:C:G 085205 SER
Mr. Alex Romero Jr.
A.F. Romero & CO Inc.
P.O.Box 989
Calexico, CA 92231
RE: "Successful Gardening Kit"
Dear Mr. Romero:
This is in reference to your letter dated July 27, 1989,
requesting the tariff classification, under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), and the correct
country of origin marking requirements, of the "Successful
Gardening Kit". A sample of the kit, which includes products
from Taiwan, China, and the United States was submitted.
FACTS:
The kit consists of several items packed together in a
printed, corrugated paperboard mailing carton: an unfilled ring
binder having a paperboard cover printed with the title "Success
with House Plants", four sets of shrink-wrapped pages (printed
with pictures and text about growing various flowers and plants)
designed to be inserted into the binder, and a pair of "plant
scissors" said to be designed especially for use in tending of
indoor plants.
The binder is marked "Made in China" on the back, it is
printed in black on a white background. The letters of these
words are approximately 1/16" high. The pages are printed in
the United States and have no markings. The scissors are made in
Taiwan and are marked "Taiwan" in a circular shape, die-casted
onto one of the blades. All of these articles will be shipped
to Mexico, where they will be packed together, forming the
individual kits at issue, which will then be imported into the
United States. They will be sent to randomly "selected
occupants (in the United States) as a gift offering, requesting
that $1.00 be paid if they choose to keep the kit and join the
club, or that they return the kit if they choose not to join the
club."
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ISSUE 1:
What is the classification of the "Successful Gardening" kit
under the HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA, is governed by the
General Rules of Interpretation (GRI), taken in order. When
goods are prima facie classifiable under two or more headings GRI
3 is applicable. In this case classification is determined by
application of GRI 3(b) which provides:
Goods put up in sets for retail sale, shall be
classified as if they consisted of the component which
gives them their essential character.
The Explanatory Notes to the HTSUSA constitute the official
interpretation of the tariff at the international level. The
Explanatory Note to GRI 3(b) provides, in part:
For the purposes 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 different articles
which are, prima facie, classifiable in
different headings;
(b) consist of products or articles put together
to meet a particular need or carry out a
specific activity; and
(c) are put in a manner suitable for sale
directly to users without repacking (e.g., in
boxes or cases or on boards).
The merchandise at issue meets this three part test so as to
constitute a set. There are at least two articles which are
prima facie, classifiable in different headings. The plant
scissors are classifiable under subheading 8213.00.90 HTSUSA,
which provides for scissors; other, valued over $1.75/dozen. The
printed pages are classifiable under subheading 4901.99.00
HTSUSA, which provides for printed books, printed matter; other.
The merchandise at issue is also put in a manner suitable
for sale directly to users without repacking. The "set" will be
packaged in Mexico and will not undergo any further assembly in
the United States.
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The most important element in this case is whether the "set"
consists of products or articles put up together to meet a
particular need or carry out a specific activity. Both articles
revolve around the basic premise of gardening. In this instance
the articles compliment each other and aid the user in the tasks
of basic gardening. The printed material provides the user with
knowledge about the plants and information on the care and
maintenance of the plants. The scissors are then utilized in the
care of the plants. These articles are put together to carry out
a specific activity, and thus are a "set".
With the elements for sets satisfied, the essential
character of the set must be determined to allow for proper
classification. "In general, 'essential character' has been
construed to mean the attribute which strongly marks or serves to
distinguish what an article is; that which is indispensable to
the structure, core or condition of the article." Harmonized
System Handbook: A Guide to the New U.S. Tariff, Office of Reg. &
Rulings, U.S. Customs Service (August 1986), page 14. The
essential character of this set is imparted by the printed pages.
The main selling point of the set is the information on the
pages. The scissors are merely a bonus for those who purchase
this product and are not the principal article for which someone
would purchase this product.
HOLDING:
The merchandise at issue meets the requirements of a set
under GRI 3(b), and the essential character of this set is
imparted by the printed material. Classification is under
subheading 4901.99.00, HTSUSA, which provides for printed books,
printed matter; other. The rate of duty is free.
ISSUE 2:
Does the merchandise at issue meet the country of origin
requirements?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), requires that, unless excepted, every article of foreign
origin, or its container, must be legibly, permanently, and
conspicuously marked to indicate the country of origin to an
ultimate purchaser in the United States. The primary purpose of
the country of origin marking statute is to "mark 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." National Juice
Products Association v. United States, 10 CIT 48, 628 F. Supp.
978 (1986), and United States v. Friedlaender & Co., 27 C.C.P.A.
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297, 302, C.A.D. 104 (1940). The regulations implementing the
requirements and exceptions to 19 U.S.C. 1304 are set forth in
the Code of Federal Regulations, 19 CFR Part 134.
In the Code, section 43 of Part 134 (134.43) deals with the
marking requirements of specific articles. The "plant scissors"
would fall within this provision. This section requires knives,
scissors, etc. to be marked by die stamping, cast-in-the-mold
lettering, etching, or engraving. The scissors at issue meet
this requirement for they do have the country of origin, Taiwan,
placed on one of the blades of the scissors.
But, section 41(b) of Part 134 (134.41(b)) calls for all
markings to be marked legibly and conspicuously. The ultimate
purchaser in the United States, it has been consistently held,
must be able to find the marking easily and read it without
strain. The scissors at issue do not meet this requirement.
The printing of "Taiwan", even in good lighting, is not easily
seen and can not be read without some strain. The scissors must
be angled to catch the light just right or the printing of
"Taiwan" is not discernable from the black scissor blade. The
circular placement of the marking, though not desired, is
acceptable. To meet the requirements of the Code, the marking
should be more easily visible, similar to the "TIGER" marking on
the other side of the blades.
The book binder from China falls under section 14 of Part
134 (134.14(a)) which deals with the marking of articles combined
with other articles. It has consistently been the position of
Customs that markings of origin must be clear and adequate as to
the origin of the individual articles which are combined with
other articles. A problem with the merchandise at issue is that
the unmarked printed pages from the United States are to be
placed in the marked binder from China, this could lead to the
implication that the printed pages are also from China. There is
no requirement that articles from the United States be marked,
even when they will be combined with other articles which must be
marked. To fulfill one aspect of the marking requirements, the
binder from China should state "Binder made in China."
In addition, Section 134.41(b), of the Code states: "the
ultimate purchaser in the United States must be able to find the
marking easily and read it without strain". The contrast created
by having black lettering on a white background is good and does
enable a purchaser to find the marking easier, but the 1/16"
lettering is rather small to allow for easy reading. It is
strongly recommended, especially since changes to the wording
must already be made, that the letters be 1/8". With the
product at issue, this size of lettering would enable easier
reading of the markings.
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The country of origin markings of containers is dealt with
in section 22 of Part 134 (134.22) of the Customs Regulations.
Although in most instances country of origin markings must appear
on the outside of a sealed container in order to provide
potential purchasers with that information prior to completing
their purchase decision, it is Customs assessment that due to the
nature of delivery of these kits, i.e., unsolicited mailings, the
origin information need not appear on the outside of the
containers.
HOLDING:
The merchandise at issue does not meet the country of origin
marking requirements as set out in 19 U.S.C. 1304. The markings
on the "plant scissors" must be more legible and more
conspicuous, so that it can be read easily and without strain by
the ultimate purchaser in the United States. The binder markings
should be larger to allow for reading easily and without strain.
In addition, the markings should be changed to "Binder made in
China", so it is clear that the pages made in the United States
are not mistakenly viewed as made in China when they are inserted
into the binder.
ISSUE 3:
Does affixing the envelope to the exterior of the carton,
during packaging in Mexico, constitute "assembly"?
HOLDING:
Custom's position is that the envelope-affixing is not an
assembly, but is part of the packaging operation.
Sincerely,
John Durant, Director
Commercial Rulings Division