The tariff classification of sleep masks from China

N232096 September 17, 2012 CLA-2-39:OT:RR:NC:N4:421 CATEGORY: Classification TARIFF NO.: 3926.90.9980 Mr. Jason Lichtman Eclipse Products, LLC 115 Laurent Street Santa Cruz, CA 95060 RE: The tariff classification of sleep masks from China Dear Mr. Lichtman: In your letter dated August 15, 2012, you requested a tariff classification ruling. The sample provided with your letter is identified as the “Total Eclipse” sleep mask. This sleep mask is particularly designed for use during travel. It includes a front shield made from opaque polycarbonate plastic sheet die cut into a mask shape. Foam plastic padding die cut roughly in the form of a figure 8 is glued to the shield to form padding around the eyes. Textile fleece fabric is laminated to the foam on the surface that touches the face. An elastic strap is threaded through slits on either side of the polycarbonate face shield to secure the mask around the head. The tension on the elastic strap is adjusted by means of hook and loop fastener tape. The elastic incorporates two sleeves or loops designed to hold a pair of earplugs. The front shield functions as a dry-erase board for messages. This feature allows the wearer to communicate his wishes while he is taking a nap. For example, an air traveler might write “Wake up only for food” or “Diet soda, please” to leave a message for a flight attendant. A commuter might write “Please wake me up by Main Street” in hopes that a fellow passenger would wake him if he oversleeps. Although the mask could also be used in the home, the design features suit it particularly for use during travel. Noting the stiffness and hard edges of the polycarbonate front shield, the mask is more likely to be used by someone napping upright during travel rather than by someone in a bed who is likely to roll over during sleep. You have requested classification advice for the product when imported as part of various scenarios and you suggest classification as a set when it is imported with one or more dry erase markers. In Scenario 1, the sleep mask is imported with the earplugs packaged for retail sale in a clear plastic bag with a “purchase card” that is printed with descriptive information about the product. That information includes directions for use, the UPC code and the domestic address of the distributor. In Scenario 2, the imported products are the same, i.e., the sleep mask is imported with the earplugs packaged for retail sale in a clear plastic bag with a purchase card printed with information about the product. However, in this case the sleep mask will be modified after importation with the addition of custom graphics. In Scenario 3, only the sleep mask will be imported in a plastic packaging bag. After importation a set of prepackaged ear plugs, a purchase card, and one or more dry-erase markers will be added. The items added after importation would be sourced within the United States. In Scenario 4 the sleep mask with earplugs will be imported in a plastic packaging bag. After importation a purchase card and one or more dry-eraser markers will be added. The items added after importation would be sourced within the United States. In Scenario 5, the sleep mask, earplugs and one or more dry-erase markers will be imported packaged in a plastic bag with purchase card ready for retail sale. Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character. The Explanatory Notes to the Harmonized Tariff System provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Explanatory Note X to GRI 3(b) provides that the term "goods put up in sets for retail sale" means goods that: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking. Goods classifiable under GRI 3(b) are classified as if they consisted of the material or component which gives them their essential character, which may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the article. In Scenario 5, the sleep mask, earplugs and one or more dry-erase markers will be imported packaged in a plastic bag with purchase card ready for retail sale. In this case, the components are considered to form a set with the essential character imparted by the sleep mask. The applicable subheading will be 3926.90.9980, HTSUS, which provides for other articles of plastics, other. The rate of duty will be 5.3 percent ad valorem. In Scenarios 1 through 4, there is no issue as to whether the imported components form a set because the sleep mask and earplugs are classifiable in the same subheading and the plastic packaging bag with printed information card are ordinary packing for the contents. Therefore, in Scenarios 1 through 4, the applicable subheading will also be 3926.90.9980, HTSUS, which provides for other articles of plastics, other. The rate of duty will be 5.3 percent ad valorem. 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/. We note that while the mask is marked to indicate that the country of origin is China, the purchase card is printed with the domestic address and no country of origin. 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. 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. The marking on the purchase card 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 sleep masks. The card must be marked to indicate “Made in China” in close proximity to, and in comparable size lettering as, the domestic address. 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 (646) 733-3023. Sincerely, Thomas J. Russo Director National Commodity Specialist Division