CLA-2 OT:RR:CTF:TCM H293445 ALS
Ms. Colleen O’Shea-Moran Darice Inc. 13000 Darice Parkway, Park 82 Strongsville, Ohio 44149
RE: Revocation of NY N248177 (December 18, 2013); Tariff classification of 3Doodler Create Pen Set
Dear Ms. O’Shea-Moran:
This letter is to inform you that we have reconsidered and revoked the above-referenced ruling. The ruling was in response to a request for such that you filed on behalf of Lamrite West, Inc. The ruling and this reconsideration addresses the legal tariff classification of 3Doodler Create Pen Set (also referred to herein as the “Create Pen”).
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N248177 was published on July 17, 2019, in Volume 53, Number 24 of the Customs Bulletin. One comment was received in response to this notice, which we will address below.
FACTS:
The facts as stated in NY N248177 are as follows:
The product to be imported is the 3Doodler, a 3D drawing pen. This pen comes with a power adapter, 2 packs of ABS (acrylonitrile butadiene styrene) plastic monofilaments and 2 packs of PLA (polylactic acid) plastic monofilaments. For purposes of this reply, it is assumed that the styrene predominates by weight over each single monomer in the ABS copolymer. Imported in various colors, these monofilaments measure approximately 3 mm in diameter and 25 cm in length. Once the 3Doodler is heated and the monofilament is loaded into the pen, the user presses and holds down the button for the desired speed and plastic is extruded through the pen’s tip.
Additional facts are that the Create Pen includes a mini screwdriver, a mini spanner, an unblocking tool, an instruction manual, and a quick start guide. The Create Pen is a hand-held 3-dimensional (3D) printer tool that is electrically powered. The Create Pen itself consists of two motors, a guide tube, a gear system, and a heating unit and nozzle at the end of the tool. The Create Pen has an aluminum outer shell with internal materials consisting of plastic and silicone.
The Create Pen utilizes the power adapter by connecting to one end while the other end is plugged into a wall electric outlet. A plastic strand is fed into the Pen towards the heater unit where it is melted and extruded from the Pen’s nozzle. The plastic hardens upon extrusion. The effect allows the user to draw objects and shapes in 3D either on a surface or in the air. The Pen has different heat and speed settings to control the flow of the melted plastic.
In NY N248177, CBP ruled that the 3Doodler Create Pen Set is classified under subheading 8516.79.00.
ISSUE:
Is the 3Doodler Create Pen Set, as described above, properly classified under heading 8477, HTSUS, which provides for “Machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this chapter; parts thereof”, or under heading 8516, HTSUS, which provides for “Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof”?
LAW AND ANALYSIS:
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may be applied in order.
The following headings and subheadings of the HTSUS are under consideration in this case:
8477 Machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this chapter; parts thereof:
8477.80.00 Other machinery...
* * *
8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof:
8516.79.00 Other...
* * * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The Create Pen without question works plastic to manufacture products, three-dimensional objects in particular. The question is whether it is specified or included somewhere in chapter 84, HTSUS, other than heading 8477.
The Create Pen does not meet the description of any of the articles of heading 8516, HTSUS. Though it is not stated in NY N248177, we surmise from that ruling’s conclusion that CBP concluded that the Create Pen fit the description of an electrothermic appliance of a kind used for domestic purposes. While it is an electrothermic device, the Create Pen cannot be said to be a domestic device. We recognize that the Create Pen may be used in a domestic environment, but it is may also be used in a commercial environment, and indeed is marketed as being suitable for domestic, commercial, and educational use. Thus, the Create Pen is not an electrothermic appliance for domestic use. Based on the foregoing, it is not classifiable as an article of heading 8516.
The Create Pen is more akin to the CreoPop 3D Printing Pen Set in CBP Ruling NY N266946 (August 18, 2015). In that ruling, CBP concluded that the CreoPop 3D Printing Pen Set is classified under heading 8477, HTSUS. Upon review of the CreoPop 3D Printing Pen Set in comparison to the subject Create Pen, we find the two articles similar enough in design and function to find the conclusion of NY N266946 applicable to this case.
As noted above, we received one comment in response to the notice of the proposed revocation. The commenter contends that the Create Pen is properly classified under heading 8467, HTSUS, which provides for “tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor... The commenter argues that the Create Pen is a handheld device that contains an electric motor, and therefore is classifiable under 8467. The ENs to heading 8467 list various methods of working materials, including drilling, tapping, reaming, boring, wrenching, screwing, gauging, surfacing, filing, grinding, sanding, and polishing. A common characteristic among these methods is that they alter the composition of the material being worked, whether by making a hole, insert a screw, or removing a top layer, for instance. The Create Pen is distinguished from the tools that perform the tasks noted in the EN for 8467 in that it extrudes the material being worked from its housing, but it does not alter its composition except to establish its initial form to create three-dimensional objects.
The commenter cited numerous cases, arguing that they are examples of articles similar to the Create Pen that CBP classified under heading 8467. Just as the working methods noted in EN 8467 are distinguished from the function of the subject Create Pen, so are the cases that the commenter cited. The articles in the cited cases all work materials in a similar fashion to the methods noted in EN 8467 (NY N289201-gluing; NY N275980-picking; NY N258238-styling; NY N250886-polishing; NY N189023-engraving; NY N097295-caulking; NY N056449-tattooing; NY N054523-drilling; HQ H017695-drilling and snaking; HQ H017694-drilling; NY N009242-tying or wrapping; NY M80652-polishing; NY J82209-cleaning; and NY H86274-carving).
Given such, we conclude that the 3Doodler Create Pen Set is properly classified under heading 8477, HTSUS. Specifically, it is classified under subheading 8477.80.00, HTSUS, which provides for “Machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this chapter; parts thereof: Other machinery...”
HOLDING:
By application of GRI 1, the 3Doodler Create Pen Set is properly classified under heading 8477, HTSUS. Specifically, it is classified under subheading 8477.80.00, HTSUS, which provides for “Machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this chapter; parts thereof: Other machinery...” The general column one rate of duty, for merchandise classified in this subheading is 3.1%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
CBP Ruling NY N248177 (December 18, 2013) is hereby REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division