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NY G86354




January 30, 2001

CLA-2-95:RR:NC:SP:225 G86354

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.0000

Mr. Alfredo Perez
Logistics Department
461 From Road
Paramus, NJ 07652-3524

RE: The tariff classification of a toy gardening set from China

Dear Mr. Perez:

In your letter dated January 10, 2001 you requested a tariff classification ruling.

A sample of the “Home Depot Gardening Set,” item #140460/631A, was submitted with your inquiry and is being returned at your request. The product consists of the following plastic toy tools: a cultivator, trowel, transplanter, and stake. Also included are a flower seed packet, vinyl gloves, cardboard garden sign and instructions. The plastic toy gardening implements all measure less than 10 inches in length. The seed packet is of U.S. origin and the gloves are sized for a child’s hands. The entire set is blister packaged on a cardboard backing and placed inside an open window display box.

This office recognizes the plastic gardening implements as toys due to their size, construction, and limited ability to function. All the components of the set work together toward the common goal of introducing a child to the recreational activity of gardening. We find the entire set is put up in a manner indicating its use as a toy for children’s amusement.

With respect to the plant seeds, the United States Department of Agriculture may impose additional requirements. For further information you may contact the USDA at:

U. S. Department of Agriculture
A.P.H.I.S., PPQ
4700 River Road, Unit 136
Riverdale, MD 20737

The applicable subheading for the “Home Depot Gardening Set,” item #140460/631A, will be 9503.70.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys, put up in sets or outfits, and parts and accessories thereof. The rate of duty will be free.

Provided the documentary requirements of 19 C.F.R. §10.1 are satisfied, the applicable subheading for the plant seeds will be 9801.00.1097, Harmonized Tariff Schedule of the United States (HTS), which provides for products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad: other: other. Products in subheading 9801.00.1097 are free of duty.

Furthermore, you are advised that the submitted sample is not properly marked with the 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.

The subject article bears the marking “CONTAINS FLOWER SEEDS OF U.S. ORIGIN” located below the window display on the front of the box. There is no mention on this panel that the other components of the set are from China. Whereas, the back panel of the box contains a U.S. company address and the words “Made in China”.

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. It should be located directly above, below or next to the foreign or U.S. address and be of the same or larger size print. Please ensure that these requirements are adhered to.

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 Alice J. Wong at 212-637-7028.

Sincerely,

Robert B. Swierupski
Director,

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