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HQ 964634




JULY 24, 2001

CLA-2 RR:CR:GC 964634 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7907.00.60

Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-00-101516; Paper Craft Punches

Dear Port Director:

This is our decision on Protest 2704-00-101516, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of paper craft punches. The entries under protest were liquidated on March 10, 2000, and this protest timely filed on June 8, 2000.

FACTS:

The merchandise at issue is invoiced as paper craft punches. Such punches come in a variety of configurations. However, the ones the subject of this protest are of zinc construction and are identified in submitted catalogs as tabletop punches, typically from 1/4 to 3 1/2 inches in size. They come with impressions of letters and numbers, flowers, circles, hearts, fruit, among many other shapes, and in various colors. They are advertised for use in decorating a variety of household goods, including stationery and gift wrap, and by craftspeople to make borders and other designs for pages in scrapbooks or keepsakes. These punches are supported by a metallic base and rest on a flat surface during use. Paper or material is inserted between components of the punch and pressure applied with the heel of the hand. This results in material with shapes cut into it and punched-out shapes which may be applied by adhesive to decorate other paper or material.

The punches were entered under a provision in heading 8441, HTSUS, as machinery for making up paper pulp, paper or paperboard, including cutting machines of all kinds. On advice from the appropriate National Import Specialist you liquidated the entries under a provision of 8205, HTSUS, as handtools, not elsewhere specified or included. On protest, counsel for the importer reasserts the claim under heading 8441 and makes alternative claims under heading 8479, HTSUS, as machines and mechanical appliances not specified or included elsewhere in chapter 84, and under heading 7907, HTSUS, other articles of zinc, respectively. The claims under both heading 8441 and heading 8479 are based on counsel’s assertion that the punches are “machines” within the common and commercial meanings of that term. The claim under heading 7907 is based on a ruling on substantially similar punches, issued after the dates of the entries under protest, but in which headings 8441 and 8479 were not addressed.

The HTSUS provisions under consideration are as follows:

Other articles of zinc:

Other

Handtoolsnot elsewhere specified or included;:

Other handtools and parts thereof:

Other

8441 Other machinery for making up paper pulp, paper or paperboard, including cutting machines of all kinds:

8441.10.00 Cutting machines

Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]:

8479.89.97 Other

ISSUE:

Whether the paper craft punches are handtools of heading 8205 or machines of heading 8479.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

As to the liquidated provision, the punches at issue are tabletop models on a metallic base that rest on a flat surface. This construction suggests they are not designed to be held in the hand or to be directed by hand during operation. For this reason, they do not qualify as handtools of heading 8205. For purposes of distinction, other punches in the submitted catalogs designated “hand held” are pliers-like in design, and clearly intended to be held in the hand during use.

Counsel’s claims under heading 8441 and 8479, HTSUS, are based on United States v. IDL Mfg. & Sales, C.D. 2146, aff’d. C.A.D. 756 (1960). In that case, certain hand-operated paper punches of the kind used in offices were found to be “machines” under an appropriate paragraph of the Tariff Act of 1930, as amended. Counsel seizes upon one dictionary definition cited by the Court from many “Any device consisting of two or more resistant, relatively constrained parts which, by a certain predetermined intermotion, may serve to transmit and modify force and motion so as to produce some given effect or to do some desired kind of work.” We respectfully disagree that this definition controls. In fact, the Court stated “While many items have been held to be, or not to be “machines,” there is no judicial determination of what a machine is. It remains simply a question of common meaning and each case must be decided on the basis of its own facts, technical and legislative.” The Court then picked the cited definition and concluded that it fairly described the merchandise. But, the Court also noted “In the present case the merchandise goes by the name of ‘paper punching machines.’” Here, there is no evidence that the paper craft punches at issue are known in the paper craft/scrapbook industry as machines, or that they are commonly bought, sold or referred to as such in the trade. There is no basis, therefore, to conclude that they are within the common or commercial meaning of the term “machine” for tariff purposes. Accordingly, they cannot be classified either under heading 8441 or under heading 8479. We note as well the 8441 ENs which on pp. 1332 and 1333 list the kinds of
machines included in that heading. These perform a variety of trimming, cutting, winding, stacking and forming operations, sometimes in combination. All are large machines used for the commercial processing of paper and paper products. Paper craft punches of the type at issue here are not of the class or kind described by these ENs.

In NY F86984, issued to counsel for the importer/protestant on May 23, 2000, but after the dates of entry and liquidation in this protest, five (5) models of paper punches were held to be classifiable in subheading 7907.00.60, HTSUS, as other articles of zinc. The punches were described as being almost entirely of zinc and neither designed to be used in the hand nor considered used in an office-related function. Counsel characterizes the punches in NY F86984 as identical to those at issue in all relevant respects. Having discounted the claims under headings 8441 and 8479, we conclude that NY F86984 controls the classification here.

HOLDING:

Under the authority of GRI 1, the paper craft punches are provided for in heading 7907. They are classifiable in subheading 7907.00.60, HTSUS.

Since reclassification of the merchandise as indicated above will result in a lower rate of duty, the protest should be ALLOWED under subheading 7907.00.60. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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