The tariff classification and marking of skateboards and skateboard trucks from China

N245705 September 24, 2013 CLA-2-95:OT:RR:NC:N4:424 CATEGORY: Classification; Marking TARIFF NO.: 9506.99.6080 Mr. John Poole Absolute Board Co. U 2 9-11 Babdoyle Street Loganholme, Queensland 4129 Australia RE: The tariff classification and marking of skateboards and skateboard trucks from China Dear Mr. Poole: In your letter dated August 28, 2013, you requested a tariff classification ruling. Photographs and descriptions of two lines of skateboards, identified as “Penny” and “Z-Tech,” were received with your inquiry. “Penny” skateboards are constructed with either 22” or 27” long plastic decks and are available in a wide array of colors and designs. The “Z-Tech” brand skateboards are constructed with wooden decks made from Canadian maple and Chinese birch. They are available in multiple styles (e.g. longboards) as well as different colors and designs. You also inquired about the classification of skateboard trucks which will be available in two sizes, depending on the size of the skateboard, and multiple colors. The applicable subheading for the “Penny” and “Z-Tech” skateboards as well as the skateboard trucks will be 9506.99.6080, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Articles and equipment for general physical exercise, gymnastics, athletics, other sports…or outdoor games…; swimming pools and wading pools; parts and accessories thereof: Other: Other: Other...Other." The rate of duty will be 4% ad valorem. 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/. You also requested the proper country of origin marking for the skateboards and skateboard trucks. You state that both styles of skateboards are imported in a shipping carton, four per box, with each individually wrapped in a plastic bag. Once received by the retailer, they are removed from the bag and placed on shelves to be sold. Neither skateboard style is imported with any retail packaging. Instead, each skateboard has a hang tag which is attached to a plastic tie that is looped around the skateboard truck. Photographs of the hang tags were received for both skateboard lines. The front of the “Penny” hang tag displays the brand’s trademark which consists of the name “Penny” in large letters with the word “Australia” beneath it in smaller letters. The back of the hang tag contains some information about the skateboard, the website and the phrase “The Original Plastic Skateboard.” A photograph of the underside of the skateboard shows the words “PENNY SKATEBOARD AUSTRALIA” on one line and “SINCE FOREVER” just beneath it in raised letters molded into the plastic. There is no country of origin marking on either the hangtag or skateboard. The front of the Z-Flex hang tag displays the brand’s logo, name, bar code and website. The back of the tag is empty. There is no country of origin marking on the tag or on the skateboard. Unlike the skateboards, the “Penny” skateboard trucks are imported already packaged for retail sale in a cardboard window box. The front of the box as well as a side panel displays the “Penny” brand trademark which consists of the name “Penny” in large letters with the word “Australia” beneath it in smaller letters. The back panel is empty. There is no country of origin marking on the packaging. You have proposed the following markings: Penny and Z-Tech Skateboard - a pressure sensitive label on the front skateboard truck with the phrase “Made in China.” Penny Skateboard Hang Tag - the phrase “Made in China” on the bottom back panel of the hang tag. Penny Skateboard Truck - the phrase “Made in China” stamped on the bottom front panel of the retail 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. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. In addition, 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. CBP has ruled that 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. Moreover, Section 134.47, Customs Regulations (19 CFR 134.47), provides that when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place name “or in some other conspicuous location.” Whether the country of origin appears “in close proximity” or in some other conspicuous place, the name of the country of origin must be preceded by “Made in,” “Product of,” or words of similar meaning. In other words, if the question concerns a trademark, trade name or souvenir marking, the country of origin marking need only meet the general standard of conspicuousness. The purpose of 19 CFR 134.46 and 19 CFR 134.47 is to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. However, the main distinction between the two provisions is that 19 CFR 134.46 requires that the name of the actual country of origin appear "in close proximity" to the non-origin reference and in lettering of at least comparable size. By contrast, 19 CFR 134.47 is less stringent, providing that the name of the country of origin must appear in close proximity to the non-origin reference or "in some other conspicuous location." In other words, the latter provision triggers only a general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in," "Product of," or other similar words. You have provided the United States Patent and Trademark Office certificate showing that a trademark was issued for the “Penny Australia” mark in question. As a result, the products printed with this phrase are subject to the less stringent requirements of 19 CFR 134.47. Consequently, pursuant to 19 CFR 134.47, the country of origin must appear in close proximity or "in some other conspicuous location" preceded by words such as "Made in" or "Product of." The proposed marking of Penny Skateboard Hang Tag with the phrase “Made in China” on the bottom back panel of the hang tag meets this requirement. However, due to the nature of the product, the skateboard may be handled in a rough manner prior to being purchased. For example, a buyer may place the skateboard on the ground and even try to ride it short distances inside the store, placing the hang tag at a greater risk of detaching from the product. Therefore, the skateboard will require a country of origin marking as well. While the preferred method of marking would be to place the words “Made in China” molded into the plastic on the bottom of the skateboard similar to the marking “PENNY SKATEBOARD AUSTRALIA” and “SINCE FOREVER,” your proposed marking of “Made in China” with a pressure sensitive label on the front truck would suffice. It would meet the requirements of 19 CFR 134.47. Similarly, your proposed marking of “Made in China” stamped onto the front of the retail box which contains the “Penny” skateboard trucks would be sufficient and, again, satisfy the marking requirements of 19 CFR 134.47. Lastly, while you did not submit a proposed marking for the Z-Tech hang tag, since it does not contain a locality reference, it will be subject to just the general marking requirements of 19 U.S.C. 1304 and 19 C.F.R. Part 134. Marking the hang tag and skateboard in a similar manner outlined above would be considered conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Please be advised that the skateboard trucks, when imported separately from the skateboard, may be subject to antidumping duties or countervailing duties (AD/CVD). Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on "Contact Us"). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on "Antidumping and countervailing duty investigations"), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://www.cbp.gov (click on "Import" and "AD/CVD"). 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 James Forkan at (646) 733-3025. Sincerely, Myles B. Harmon Acting Director National Commodity Specialist Division