The tariff classification and marking of sunglasses from Taiwan, micro-fiber pouch from China and sports zip case from China

N063775 June 30, 2009 CLA-2-90:OT:RR:NC:4:414 CATEGORY: Classification; Marking TARIFF NO.: 9004.10.0000 Ms. Desiree Berg Aussie Eyewear Limited 2943 Brahms Lane Woodstock, IL 60098 RE: The tariff classification and marking of sunglasses from Taiwan, micro-fiber pouch from China and sports zip case from China Dear Ms. Berg: In your letter dated May 27, 2009, you requested a tariff classification ruling. A sample of a pair of sunglasses, a micro-fiber pouch and a sports zip case were submitted with the ruling request. The sunglasses are model R9030. The sample will be returned as requested. The sunglasses are part of the Ugly Fish Riderz (UF Riderz) line which consists of sixteen different styles. All the styles are designed as protective eyewear intended for use in motorcycle and motor sports activities. There are three categories of eyewear featuring shields, which are basic safety eyewear, sunglasses, and multifunctional eyewear. The shields category consists of four styles: RS 6123, RS 7123, RS 6675 and RS5959. The sunglasses category consists of five styles: R9030, R588, RS3800, R3001 and R6900. The multi-functional category consists of seven styles: RS5066, FORCE, ESCAPE, ULTIMATE, GLIDE, SLIM and CRUIZE. The UF Riderz line is composed of plastic TR-90 frames and plastic polycarbonate decentered safety lenses. Every pair comes with a micro-fiber pouch and a sports zip case. The UF Riderz line is designed and developed in Australia. The eyewear, the micro-fiber pouch and the sports zip case will be shipped to Australia separately from Taiwan and China respectively. In Australia, a pair of eyewear, a sports zip case, a micro-fiber pouch and a textile cleaning cloth will packaged in a cardboard box ready for retail sale. However, you have stated that all parts of the eyewear are manufactured and assembled in Taiwan and the micro-fiber pouch and the sports zip case are made in China. The sunglasses, micro-fiber pouch and sports zip case, in our opinion, meets the criteria for sets as the terms are defined in Explanatory Note X to GRI 3(b). For the purposes of the Harmonized Tariff Schedule, the eyewear, micro-fiber pouch and sports zip case constitute a set. Having determined that the items constitute a set for tariff classification purposes, we must decide the essential character. According to the Explanatory Note VIII to GRI 3(b), essential character may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods. The eyewear imparts the essential character of the set. Therefore, the set is classified as the eyewear in heading 9004, Harmonized Tariff Schedule of the United States (HTSUS).The applicable subheading for the model R9030 sunglasses, micro-fiber pouch and sports zip case will be will be 9004.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for spectacles, goggles and the like, corrective, protective or other; sunglasses. The rate of duty will be 2 percent. If you require a classification ruling on the shields category of eyewear and the multifunctional category of eyewear, please file a written request for a classification ruling and furnish representative samples of the shields and the multifunctional eyewear. You have also requested a ruling on the marking of the Ugly Fish Riderz line of eyewear. You state that the marking on the eyewear will be consistent for all sixteen styles. The right arm of all the eyewear will be marked with “Australian Safety Standard AS NZS 1337-1992 Australia”. The left arm will be marked with model numbers and symbols that identify the impact resistance of eyewear. 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. The proposed marking of the imported eyewear as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not acceptable country of origin marking for the imported eyewear. The mere packaging which is done in Australia does not result in a substantial transformation of the article. Therefore, we determine that the use of the word Australia could mislead or deceive an ultimate purchaser as to the actual origin of the article. Also, we find that the non-origin geographical references on the earpiece (Australia Safety Standard etc.) trigger the special marking requirements of 19 CFR 134.46. Section 134.46, Customs Regulations (19 CFR 134.46), requires that in any case in which 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 purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported goods. The eyewear must be conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C 1304 and 19 CFR Part 134 by etching or die sinking the temple (side piece) with “Made in Taiwan”. Both the micro-fiber pouch and the sports zip case must be conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 by printing “Made in China” on a permanently sewn-in fabric label with print of at least 6 points and in a color that contrasts with the color of the label itself, for example, white printing on a black label.   For your information, additional requirements may be imposed on this product by the Food and Drug Administration. You may contact the FDA at:                          Food and Drug Administration Division of Regulatory Guidance 10903 New Hampshire AveSilver Spring, MD 20993-0002 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/. 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 Barbara Kiefer at (646) 733-3019. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division