The tariff classification of a cell phone alert pen from Taiwan.

NY H82154 June 21, 2001 CLA-2-96:RR:NC:N2:221 H82154 CATEGORY: Classification TARIFF NO.: 9608.10.0000 Ms. Cecilia Castellanos Western Overseas Corporation 1855 Coronado Avenue Long Beach, CA 90804 RE: The tariff classification of a cell phone alert pen from Taiwan. Dear Ms. Castellanos: In your letter dated May 29, 2001, you requested a tariff classification ruling on behalf of Magnet LLC. The sample submitted with your letter is identified as a cell phone alert pen. It is a ball point pen designed to detect high frequency mobile phone signals at ranges up to .5 to 1.5 meters. If the pen is within the appropriate range, the signal from an incoming call on a mobile phone should cause a light at the tip of the pen to flash. The sample is being returned as you requested. The applicable subheading for the cell phone alert pen will be 9608.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for ball point pens. The general rate of duty will be 0.8 cents each plus 5.4 percent ad valorem. The sample pen is not marked to indicate the country of origin. You state that the pen will be individually polybagged with “Made in Taiwan” on the polybag, but you do not indicate whether the pen will be sold in that marked polybag. 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d) defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the pen is the consumer who purchases the pen at retail. An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, if the pens are sold at retail in sealed polybags that are marked to indicate the country of origin then the marking on the bags is acceptable country of origin marking provided that the marking is permanent, legible and conspicuous, and the port director is satisfied that the pens will remain in the marked bags until they reach the ultimate purchaser. However, if, as this office believes, the pens will be repackaged after importation, then the question of whether the subject articles may be excepted from individual marking under 19 CFR 134.32(d) is for the port director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized at the discretion of the port director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry. In this case, assuming that the port director is satisfied that the imported pens will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the port director may authorize an exception under 19 CFR 134.32(d), in which case individual marking of the imported pens will not be required. 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 212-637-7034. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division