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NY M86954

October 19, 2006

CLA-2-82:RR:NC:1:104 M86954


TARIFF NO.: 8205.59.7000; 8207.90.6000; 8420.10.9080

Mr. Gordon C. Anderson
C.H. Robinson Worldwide, Inc.
8855 Columbine Road
Suite 400
Eden Prairie, MN 55347-4148

RE: The tariff classification of clay working equipment from China

Dear Mr. Anderson:

In your letter dated September 28, 2006 on behalf of Walnut Hollow Farm Inc. you requested a tariff classification ruling.

The “Clay Tool Kit”, Item #35151, consists of an aluminum cylindrical shaped tool handle imported packaged together with 22 interchangeable metal bits and attachments that fit onto the bits. The tool handle features a screw in/out tip at one end to accept the interchangeable bits. The interchangeable tools are designed to cut and shape or put patterns or designs into modeling clay.

The “Ultimate Clay Extruder”, Item #35158, consists of an aluminum handheld extruder tool and 20 interchangeable round disc attachments of various designs. Soft clay is loaded into the barrel from the bottom of the tool. The bottom is closed by screwing on the bottom cap containing one of the changeable discs. A plunger/T-handle mechanism is employed to extrude the clay through the disc. The desired shape or pattern is dependent upon the disc used.

In your letter, you suggest classifying this item and the “Extruder Discs”, Item # 35159 in subheading 8479.89.9897, Harmonized Tariff Schedule of the United States (HTSUS), which provides for machines and mechanical appliances having individual functions, not specified or included elsewhere (in chapter 84): other machines and mechanical appliances. In this instance, consideration must be given to Note 1(k) to Section XVI which states that this section (i.e., Section XVI) does not cover “Articles of chapter 82 or 83”. As these items are provided for in chapter 82, classification in subheading 8479.89.9897, HTSUS, is precluded.

The “Extruder Discs”, Item #35159, consists of 10 round metal discs. These discs are used in the above described “Ultimate Clay Extruder”, Item #35158. The discs provide additional patterns and shapes.

The “Ultimate Clay Machine”, Item #35157, consists of a chrome-plated steel machine, a metal clamp for securing the machine to a table and a “Bonus” package containing a project guide, handheld metal clay cutters, push molds and plastic texture sheets. The clay is inserted in the opening between the rollers. Clay is rolled into sheets of uniform thickness by manually turning the crank handle clockwise. As the handle is being turned, the clay passes through two parallel 180 mm/7 inch rollers. The machine has nine thickness settings. To change the settings on the machine, one pulls out the numbered knob and turns it to the desired number. Once released, the knob will lock in place.

This office notes that on the back panel of the retail box, in red lettering on a yellow background, are the words “OPTIONAL MOTOR”. Beneath this lettering are the words “OPTIONAL MOTOR – CAN BE ATTACHED TO THE MAKIN’S® ULTIMATE CLAY MACHINE™”. However, the side panel reads “MAKIN’S CLAY® AND MAKIN’S® ULTIMATE CLAY MACHINE™ MOTOR ARE NOT INCLUDED”. In addition, in your letter of September 28, 2006, you confirm that “an optional electric A/C motor can be purchased and fitted to this machine, but it is not included in this kit”. (emphasis added)

The above “Ultimate Clay Extruder”, Item #35158 and the “Ultimate Clay Machine”, Item #35157 consist of at least two different articles that are, prima facie, classifiable in different headings. The sets consist of articles put up together to carry out a specific activity (i.e., clay working). Finally, the articles are put up in a manner suitable for sale directly to users without repacking. Therefore, the sets in question are within the term "goods put up in sets for retail sale." General Rule of Interpretation (“GRI”) 3(b) states in part that goods put up in sets for retail sale, which cannot be classified by reference to GRI 3(a), are to be classified as if they consisted of the component which gives them their essential character. It is the opinion of this office that the aluminum handheld extruder tool (“Ultimate Clay Extruder”, Item #35158) and the clay machine (“Ultimate Clay Machine”, Item #35157) impart the essential character to their respective sets.

The “Clay Tool Kit”, Item #35151, also meets the requirements of a set. It consists of various interchangeable tools for stamping, marking, cutting and texturing. 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 sample, this office is of the opinion that all the various bits merit equal consideration. In this case, all the bits fall under the same heading, i.e., heading 8207, HTSUS, which provides for interchangeable tools for handtools. GRI 6 states, in part, that merchandise is to be classified at the subheading level according to the chapter notes and the GRIs. Applying GRI 3(c) at the subheading level, the “Clay Tool Kit”, Item #35151 is classifiable in the subheading which occurs last in numerical order.

The applicable subheading for the “Clay Tool Kit”, Item #35151 will be 8207.90.6000, HTSUS, which provides for Interchangeable tools for handtools, whether or not power-operated, or for machine-tools (for example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching, milling, turning or screwdriving), including dies for drawing or extruding metal, and rock drilling or earth boring tools; base metal parts thereof: Other interchangeable tools, and parts thereof: Other: Other: Not suitable for cutting metal, and parts thereof: For handtools, and parts thereof. The rate of duty will be 4.3 percent ad valorem.

The applicable subheading for the “Ultimate Clay Extruder”, Item 35158 will be 8205.59.7000, HTSUS, which provides for handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand- or pedal-operated grinding wheels with frameworks; base metal parts thereof: other handtools (including glass cutters) and parts thereof: other: other: other: of aluminum. The rate of duty will be 1.5¢ per kilogram, plus 3.5% ad valorem.

The applicable subheading for the “Extruder Discs”, Item #35159 will be 8207.90.6000, HTSUS, which provides for Interchangeable tools for handtools, whether or not power-operated, : For handtools, and parts thereof. The rate of duty will be 4.3 percent ad valorem.

The applicable subheading for the “Ultimate Clay Machine”, Item #35157 will be 8420.10.9080, HTSUS, which provides for Calendering or other rolling machines, other than for metals or glass, and cylinders therefore; parts thereof: Calendering or other rolling machines: Other Other. 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/.

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

The submitted samples of the four items were examined for purposes of marking compliance. The “Clay Tool Kit”, Item # 35151, the “Ultimate Clay Extruder”, Item # 35158, and the “Ultimate Clay Machine”, Item # 35157 all show “Made in China” on a side panel and “Distributed by WALNUT HOLLOW 1409 State Road 23 Dodgeville, WI 53533 walnuthollow.com” on the back panel of the packaging (i.e., the panel on which the instructions are also printed). The foreign country of origin marking appears in black ink on an orange background. The name of the locality in the United States appears in a yellow circle against the packaging’s orange background. The Walnut Hollow registered logo also appears in the circle.

The marking on the “Extruder Discs”, Item # 35159, differs only in the manner of placement on the packaging. In this case, both the foreign country of origin marking and the American distributor’s logo and address both appear in close proximity on the back of the packaging.

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 appearing on the “Extruder Discs”, Item # 35159, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the “Extruder Discs”, Item # 35159. However, the markings appearing on the “Clay Tool Kit”, Item # 35151, the “Ultimate Clay Extruder”, Item # 35158, and the “Ultimate Clay Machine”, Item # 35157 do not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. The country of origin marking must appear in close proximity on the same panel on which the Walnut Hollow name, logo and U.S. locality appear.

Samples (4) will be returned to you as per your request.

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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