# NY G86338

February 13, 2001

CLA-2-96:RR:NC:SP:221 G86338

CATEGORY: Classification

TARIFF NO.: 9608.40.8000; 9609.20.2000

Mr. Marc D. Torrence

V. Alexander & Co., Inc.

P.O. Box 291929

Nashville, TN 37229-1929

RE: The tariff classification of clutch pencils from China and lead
refills from Japan.

Dear Mr. Torrence:

In your letter dated January 5, 2001, on behalf of Sanford LP, you
requested a tariff classification ruling.

Two sample clutch pencils and one box of refill leads were included with
your request. The lead in the clutch pencils is extended by depressing a
plunger at the top of the pencil, activating a spring that pushes the
lead out of the bottom of the barrel, where it is held in place by jaws.
The lead is retracted by depressing the plunger and pressing the lead
against a firm surface, pushing it back into the barrel. The components
for the pencil and for the pencil lead packaging case are produced in
China. The refill leads are produced in Japan and shipped in bulk to
China. The pencil is assembled in China using the Chinese origin pencil
components and the Japanese origin lead. The lead refills will be
purchased separately by the consumer. They are shipped in a plastic box
holding 12 refill leads of various colors, measuring 0.7 mm in diameter.
The samples are being returned as you requested.

The applicable subheading for the clutch pencils will be 9608.40.8000,
Harmonized Tariff Schedule of the United States (HTS), which provides
for propelling or sliding pencils (for example, mechanical pencils);
other. The rate of duty will be free.

The applicable subheading for the replacement pencil leads will be
9609.20.2000, HTS, which provides for pencil leads, black or colored:
not over 1.5 mm in maximum cross-sectional dimension. The rate of duty
will be free.

The pencil is marked with the company name ("Sanford"), the style name
("ish"), and the lead diameter ("0.7mm") printed in colored letters on
the transparent portion of the barrel. The country of origin ("China")
is molded into the clear cap at the top of the barrel. The marking is
"blind," that is, molded into the material without any contrast in color
from the background. The box of leads is marked on the front with
identifying information printed in contrasting colors on both the box
and the label. The country of origin ("China") is molded into the back
of the plastic packaging box without any contrast in color from the
white background.

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.

The pencil leads are produced in Japan and shipped to China. Some will
be inserted into pencils and others will be packaged for sale as refill
leads. The pencil leads lose their identity when they are assembled into
the pencils, and the country of origin of the pencils is China. The
country of origin of the pencil leads that are merely packaged in China
remains Japan. Therefore, the case holding the pencil leads should be
marked to indicate Japan, rather than China, as the country of origin of
the leads.

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.

As provided in section 134.41(b), Customs Regulations (19 C.F.R.
§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. In HQ 733940, of October 24, 1991, Customs
Headquarters described certain factors that need to be considered in
determining if the country of origin marking on an article, such as a
writing instrument, is conspicuous within the meaning of 19 C.F.R.
§134.41 and 19 U.S.C. §1304. Among the factors that should be considered
are the size of the marking, the location of the marking, whether the
marking stands out, and the legibility of the marking. The size of the
marking should be large enough so that the ultimate purchasers can
easily see the marking without strain. The location of the marking
should be in a place on the pen where

the ultimate purchaser could expect to find the marking or where he/she
could easily notice it from a casual inspection. Whether the marking
stands out is dependent on where it appears in relationship to other
print on the article and whether it is in contrasting letters to the
background.

No single factor should be considered conclusive by itself in
determining whether a marking meets the conspicuous requirement of 19
C.F.R. §134.41 and 19 U.S.C. §1304. Instead, it is the combination of
these factors which determines whether the marking is acceptable. In
some cases, a marking may be unacceptable even when it is in a large
size because the letters are too hard to read or it is in a location
where it would not be easily noticed. In other cases, even if the
marking is small, the use of contrasting colors, which make the letters
particularly stand out, could compensate to make the marking acceptable.
Blind stamping, while not a preferred method of marking, may be
acceptable when, due to factors such as the size and depth of the
imprint and the type and color of material onto which it is stamped, the
marking is easy to find and readable without strain.

In applying these factors to the pencils and the case of leads, the
blind stamping is virtually illegible to the naked eye. The pencils and
leads are not conspicuously, legibly and permanently marked in
satisfaction of the marking requirements of 19 U.S.C. §1304 and 19
C.F.R. Part 134, and the blind stamping is not an acceptable country of
origin marking for either product. We suggest marking in a contrasting
color such as the present marking of the brand, style and lead size.
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