The tariff classification and country of origin marking of an impact indicator set from Malaysia

N239352 April 4, 2013 CLA-2-85:OT:RR:NC:N1:112 CATEGORY: Classification TARIFF NO.: 8531.80.0050 Ms. Sally Gifford Classification Specialist Adidas Group 1895 JW Foster Blvd Canton, MA 02021 RE: The tariff classification and country of origin marking of an impact indicator set from Malaysia Dear Ms. Gifford: In your letter dated March 1, 2013, you requested a tariff classification ruling and country of origin marking determination. The sample provided with your letter is being returned to you as requested. The merchandise in question is an impact indicator that goes by the name Checklight. This item is comprised of several components that will be retail packaged together and imported as a set. Included within the retail packaging is an electronic impact indicator, a knit skullcap/beanie, a USB cord and a USB charging unit. The electronic impact indicator consists of an L-shaped strip of plastic that contains electronic sensors and a microcontroller module. The microcontroller module contains software, an indicator panel with three LEDs, and a USB charging port. The impact sensor slides into a sleeve sewn into the headband of the knit skullcap/beanie. The LED indicator panel hangs below the headband and is to be worn toward the back of the users head. This allows the LED display to be visible below the bottom of an athlete’s helmet. The unit is powered by rechargeable lithium-ion batteries. The Checklight uses a tri-axial accelerometer and a gyroscope to record impact location, impact duration and acceleration. The accelerometer and the gyroscope are integrated with a microprocessor which uses a proprietary algorithm to determine impact severity. Depending on the severity of the impact, the appropriate LED will illuminate. The yellow LED indicates moderate impact while the red LED indicates more severe impact (green and amber LEDs indicate battery power level and device activation). This unit is used to assess the severity of an impact on an athlete. The two color indication system (yellow or red) provides a quick, on site, way of determining how badly an athlete has been hit/impacted. You propose classification in HTSUS 9031.80.80. However, as indicated on its packaging, the Checklight impact indicator does not provide a measurement of the forces experienced. Rather it provides “an immediate visual display through LED lights when a significant impact occurs above certain thresholds...” It does not display, via a digital or other readout, the current, accurately measured forces experienced. We therefore do not believe HTSUS 9031 applies, analogous to the distinction made in Headquarters Ruling Letter 967082, dated June 4, 2004, regarding the requirements for classification in a specific measurement heading, i.e., in HTSUS 9027 for the measurement of gas percentages in the ambient air. Based on the information provided, the subject impact indicator set/kit consists of articles put up together, in a manner suitable for sale directly to users without repacking, to carry out the specific activity of providing a signal which indicates impact safety parameters. Further, the components of the kit are, prima facie, classifiable in at least two different headings. As such, the impact indicator set/kit is classifiable as a set in accordance with General Rule of Interpretation (GRI) 3. GRI 3(a) states that the heading which provides the most specific description of a set shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the items in a set, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. The subject kits satisfy this description. As stated previously, at least two headings refer to part of the items in the kits. Accordingly, the kits are not classifiable by the application of GRI 3(a). Sets which cannot be classified by reference to GRI 3(a), shall be classified at GRI 3(b) as if they consisted of the component which gives them their essential character. The electronic impact indicator module provides the essential character 0. 0to this set. Therefore, the impact indicator set/kit is classifiable within heading 8531, HTSUS, based upon application of GRI 3(b). The applicable subheading for the Checklight impact indicator set will be 8531.80.0050, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Electric sound or visual signaling apparatus...: Other apparatus: Other”. The rate of duty will be 1.3%. In addition to the classification request you have also inquired as to the acceptability of your proposed country of origin marking. The items within this set will be marked with their respective country of origin. You propose to mark the sealed retail box in which they are sold with the following statement, “Articles contained in this carton are marked with their actual country of origin which may be one of the following countries: China, Vietnam.” 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 imported impact indicator is the consumer who purchases the product at retail. The marking requirements for unsealed disposable containers of imported merchandise are set forth in section 134.24(d), Customs Regulations (19 CFR 134.24(d)). This section provides that “if the container is normally opened by the ultimate purchaser prior to purchase, only the article need be marked.” The imported impact indicator set is not the type of article(s) that a prospective purchaser would take out of its container to examine prior to purchase; therefore the sealed disposable containers have to be marked. The proposed marking is referred to as marking in the disjunctive. Marking in the disjunctive is generally not allowed. It is not allowed when the supplier knows the country of origin, but for convenience sake wants to use one type of marking to cover products that may be from one of several countries of origin. It has been allowed when merchandise is comingled and as such the country of origin cannot reasonably and without great expense be determined. That is not the case here, the country of origin of each item within this set is known. In addition, because a U.S. reference appears on the retail package when the set is imported into the U.S., (an address with the letters “U.S.A.” appears in close proximity to your country of origin marking) it is necessary to implement additional marking requirements. 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. The purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of an article as to the actual origin of the imported good. Based on the information supplied and the above facts we find the proposed marking of the sealed retail package to be unacceptable. The marking on the sealed retail package should indicate each item concerned and its country of origin preceded by “Made in”, “Product of”, or other words of similar meaning. 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 heading 9031 please contact National Import Specialist James Sheridan at (646) 733-3012, for all other issues please contact National Import Specialist Steven Pollichino at (646) 733-3008. Sincerely, Thomas J. Russo Director National Commodity Specialist Division