CLA-2-85:OT:RR:NC:1:108
Mr. Gene LaMarca
Findaway World, LLC
31999 Aurora Road
Solon, OH 44139
RE: The tariff classification and marking of sound recording/reproducing devices from China.
Dear Mr. LaMarca:
In your letter dated September 15, 2008, you requested a tariff classification and marking ruling.
The subject merchandise, based on the submitted information, consists of battery-operated, sound recording/reproducing devices that measure about 3 inches high by 2 inches wide. It is stated that the technology within these devices utilizes a processor chip and flash memory. It is also stated that these devices are manufactured in China, and after importation they are pre-loaded, at the importer’s premises, with audio or musical content for playing. The consumer can neither extract files from nor download files onto these devices.
You believe that this merchandise should be properly classified under subheading 8519.89.3000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Sound recording or reproducing apparatus: Other apparatus: Other: Other. However, since these sound recording/reproducing devices incorporate a type of semiconductor media, consideration of classification under subheading 8519.89.3000, HTSUS, is precluded.
The applicable subheading for this merchandise will be 8519.81.4050, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Sound recording or reproducing apparatus: Other apparatus: Using magnetic, optical or semiconductor media: Other: Other. 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/.
In regard to proper marking, the subject merchandise, which originates from China, is not individually marked with the country of origin at the time of importation, but the shipping box, which contains dozens of these sound recording/reproducing devices, is noted to be marked with “Made in china ”(sic).
After importation it is stated that these devices will be labeled, at the importer’s premises, with the country of origin, “Made in China,” and thereafter will be packaged with earphones, within the importer’s finished boxes or cases, for distribution to retail outlets, public libraries and military bases (depending upon where the merchandise is shipped, the type of packaging will be different). This packaging also will indicate the country of origin, “Made in China,” that will appear, depending on the type of packaging, with incomparably sized non-origin localities (different packaging will have the country of origin appear with a comparably sized non-origin locality); furthermore, depending on the type of packaging, the country of origin will be located, with a non-origin locality, at the bottom of the importer’s box.
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.
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 such a case, 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.
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 or locality other than the actual country of origin appears.
Normally, articles of foreign origin imported into the United States must be marked with their country of origin at the time of their importation. However, in certain circumstances U.S. Customs and Border Protection (CBP) has recognized that it is necessary to allow articles to be marked after importation. The exceptions to marking are listed in 19 CFR 134.32. None of the applicable exceptions pertain to the circumstance that you describe, because you did not demonstrate to CBP that there are significant practical problems involved in affixing the country of origin label prior to importation into the United States.
Therefore, at the time of importation, these sound recording/reproducing devices must be individually marked, as per the above-cited applicable regulations, with the country of origin, China. Moreover, when packaged for distribution, with the individual devices not being easily accessed for viewing the country of origin, all the finished packages must then be marked in accordance with the above regulations: specifically, when appearing with non-origin localities, showing the country of origin to be of comparable size with those localities; and having the country of origin be conspicuously located on the sides or top of the box, rather than on its bottom.
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 Lisa Cariello at (646) 733-3014.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division