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NY M85363

August 15, 2006

CLA-2-84:RR:NC:N1:104 M85363


TARIFF NO.: 8480.60.0090

Mr. Lowell Fritzke
Magnetic Poetry®
615 First Avenue Northeast, Suite 150
Minneapolis, MN 55413

RE: The tariff classification of a concrete form kit from China.

Dear Mr. Fritzke:

In your letter, dated July 19, 2006, you requested a tariff classification ruling. A prototype with a mock-up of the retail carton has been submitted for review. The packaging is in the process of being finalized.

The “Make Your Own Stone Faces Kit” is a set comprised of a reusable styrene, vacuum formed tray or mold, 2 pounds of lightweight concrete, and a 3 ounce bottle of terra -cotta tint. The kit is used to create concrete faces in the likeness of a Greek god. Kits are also available for creating concrete faces in the likeness of a “Serene Buddha” and “Greenman.” During use, the consumer mixes the concrete with the tint (if a color other than gray is desired) and then pours the concrete into the reusable mold. He can then place a flowerpot (which is not included in the kit, but must be purchased separately) into the wet concrete behind the face and let it cure for 24 hours. After the concrete dries, the consumer can plant flowers or other vegetation in the pot. When a plant is growing behind the face, the face appears to have hair.

General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. Goods that are, prima facie, classifiable under two or more headings, are classifiable in accordance with GRI 3, HTSUS. GRI 3(a) states in part that when two or more headings each refer to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific, even if one heading gives a more precise description of the goods.

The instant kit consists of at least two different articles that are, prima facie, classifiable in different headings. It consists of articles put up together to carry out a specific activity (i.e., molding concrete busts). Finally, the articles are put up in a manner suitable for sale directly to users without repacking. Therefore, the kit in question is within the term "goods put up in sets for retail sale." GRI 3(b) states in part that goods put up in sets for retail sale, which cannot be classified by reference to 3(a), are to be classified as if they consisted of the component which gives them their essential character.

Inasmuch as no essential character can be determined, GRI 3(b) does not apply. GRI 3(c) states that, if neither GRI 3(a) nor GRI 3(b) applies, merchandise shall be classified in the heading which occurs last in numerical order among those equally meriting consideration. After examining the literature, this office is of the opinion that only the bag of concrete and the mold merit equal consideration.

The applicable subheading for the concrete form kit will be 8480.60.0090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Molding boxes for metal foundry; mold bases; molding patterns; molds for metal (other than ingot molds), metal carbides, glass, mineral material, rubber or plastics: Molds for mineral materialsOther types. The rate of duty will be Free.

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/.

The marking statute, section 304, Tariff Act of 1930, as amended (19 USC 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 USC 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 concrete form kits the consumer who purchases the product at retail.

An examination of the prototype indicates that no country of origin is shown. The retail package must be marked to indicate the country of origin.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR).

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 Patricia O’Donnell at 646-733-3011.


Robert B. Swierupski

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