CLA-2 CO:R:C:G 085758 MBR

Mr.Gregory J. Winsky
122 Burrs Road
Mt. Holly, NJ 08060

RE: Reconsideration of New York Ruling Letter 845270 regarding the ES-90 Elementary Spelling Ace

Dear Mr. Winsky:

This is in reply to your letter of September 20, 1989, on behalf of Franklin Computer, requesting reconsideration of the classification of the "Elementary Spelling Ace," under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The Franklin Computer Spelling Ace is a 4"X 6" yellow plastic electronic device with a 16 character dot matrix LCD screen. It is battery operated and has a number of functions/games, such as; spell correction, dictionary page number recall, user list, flashcards, user hangman, hangman, wordblaster, jumble and score keeping. The promotional literature states that: "The Elementary Spelling Ace creates enthusiasm for learning with its variety of educational games. Although the games are designed to improve spelling and increase vocabulary skills, each one is loads of fun!"

ISSUE:

Under which of the following HTSUSA headings is the "Elementary Spelling Ace" properly classified:

4901, HTSUSA, which provides for printed books, brochures, leaflets and similar printed matter, whether or not in single sheets.

8472, HTSUSA, which provides for other office machines (for example, hectograph or stencil duplicating machines, addressing machines, automatic banknote dispensers, coin-sorting machines, coin-counting or wrapping machines, pencil-sharpening machines, perforating or stapling machines).

9504, HTSUSA, which provides for articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment.

8543, HTSUSA, which provides for electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

You argue that the "Spelling Ace" is classifiable under subheading 4901.91, HTSUSA, which provides for dictionaries. Webster's Elementary Dictionary, page 142, (1986), (sold with the "Spelling Ace" in the United States), defines "dictionary" as "1: a book giving the meaning and usually the pronunciation of words listed in alphabetical order 2: an alphabetical reference book explaining words and phrases of a field of knowledge 3: a book listing words of one language in alphabetical order with definitions in another language." The "Elementary Spelling Ace" performs none of these functions.

The "Elementary Spelling Ace" is also not a book, as defined in Webster's Elementary Dictionary, page 56: "1: a set of sheets of paper bound together 2: a long written work 3: a large division of a written work 4: a pack of small items bound together ."

The "Elementary Spelling Ace" is also not "similar printed matter," provided for in 4901, HTSUSA. "Similar printed matter" does not mean "similar to printed matter," it means printed matter that is similar to "printed books, brochures, leaflets." To be similar to these items, the article necessarily must be printed. In order to be printed, the article must be the result of a printing process. The McGraw-Hill Encyclopedia of Science & Technology, page 277, (1987), delineates the five general printing processes: "1. Relief printing, which includes letterpress and flexography. Letterset can also be included in this process, although it is used on an offset press. 2. Planographic printing, which includes offset lithography, screenless lithography, and collotype (photogelatin). 3. Intaglio, which includes gravure, steel-die, and copper-plate engraving. 4. Stencil and screen printing. 5. Electronic printing, which consists of electrostatic and ink jet printing."

Legal Note #2 to chapter 49 also includes the following means of printing in "printed matter:"

For the purposes of chapter 49 the term "printed" also means reproduced by means of a duplicating machine, produced under control of a computer, embossed, photographed, photocopied, thermocopied or typewritten.

It is Customs position that the phrase "produced under control of a computer" is intended only to encompass the "hard copy" that computer printers are able to produce and therefore does not encompass characters that appear on an LCD screen.

The "Elementary Spelling Ace" utilizes none of these methods for rendering its characters on a liquid crystal display, and thus is not printed matter, nor does it yield printed matter (hard copy) which computer printers have the ability to do. The encoded RAM is also not "similar printed matter" because it is also not the result of an aforementioned printing process. Therefore, according to the principle of ejusdem generis, the "Elementary Spelling Ace" cannot be properly classifiable under the provision for "Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets," because it is not of the same class of goods as those enumerated under heading 4901, HTSUSA.

The title to Chapter 49 provides for printed books, newspapers, pictures and other products of the printing industry; manuscripts, typescripts and plans. Although chapter titles have no legal significance and are to be used only for ease of reference, this title clearly only mentions articles that are the result of a printing process.

You argue that the "Elementary Spelling Ace" is a composite good since it is always packaged and sold in the United States with the Webster's Elementary Dictionary. However, the "Elementary Spelling Ace" cannot be considered an element of a composite good or a good put up in a set. Only the "Elementary Spelling Ace" electronic device is imported and thus, for classification purposes, it cannot be considered as a set encompassing a dictionary that is added after importation. Benrus Watch Co. et al. v. United States, 21 CCPA 139, T.D. 46467 (1933), cert. denied. 291 U.S. 679, 54 S.Ct. 529, 78 L. Ed. 1067 (1933); United States v. Balt Anchor, Chain & Forge Division of the Boston Metals Co. et al., 59 CCPA 122, C.A.D. 1051, 459 F.2d 1403 (1972); Franklin Industries, Inc. v. United States, USITR, 1 CIT 349, Slip Op. 81-55 (June 18, 1981).

In New York Classification Letter #845270, September 14, 1989, Customs position was that the instant merchandise was properly classifiable under subheading 8472.90.80, HTSUSA, governing Other office machines: Other. The other office machines that are provided for specifically are: Automatic bank note dispensers and other coin or currency handling machines; Pencil sharpeners; Numbering, dating and check-writing machines; Other. The Harmonized Commodity Description and Coding System Explanatory Notes to heading 84.72, page 1302, state:

The term "office machines" is to be taken in a wide general sense to include all machines used in offices, shops, factories, workshops, schools, railway stations, hotels, etc., for doing "office work" (i.e., work concerning the writing, recording, sorting, filing, etc., of correspondence, documents, forms, records, accounts, etc.). (Emphasis added).

The heading includes, inter alia: (1) Duplicating machines; (2) Addressing machines; (3) Ticket issuing machines; (4) Coin sorting or coin-counting machines; (5) Automatic banknote dispensers; (6) Pencil sharpening machines; (7) Punching machines; (8) Machines for perforating paper bands so that they can be used in automatic typewriting machines; (9) Perforated band operated machines. Clearly, these are all machines that are to be used in offices, for office work.

The "Elementary Spelling Ace" is designed and marketed for the exclusive use of children ages 6-12. These children are not likely to be working in factories, hotels or railway stations, etc. It is clear that the "Elementary Spelling Aces" are not likely to be used in offices, for office work.

The promotional literature states that: "The Elementary Spelling Ace creates enthusiasm for learning with its variety of educational games. Although the games are designed to improve spelling and increase vocabulary skills, each one is loads of fun!" Thus, the issue of essential character is presented. Is this article's essential character that of a toy that is also educational or is its essential character that of an educational article that has toy features? There can be no question that this article is marketed as a spelling learning device and that parents would purchase it as an educational tool for their children. Furthermore, even if the ultimate consumer, the child, primarily uses the game functions, he or she is unwittingly improving their spelling and vocabulary as the parents intended. Therefore, we find that the essential character is that of an educational article.

However, there is no provision in the HTSUSA for educational articles. Thus, the "Elementary Spelling Ace" is classifiable under subheading 8543.80.90, HTSUSA, which provides for electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; other.

HOLDING:

The "Elementary Spelling Ace" is classifiable under the provision for electrical machines and apparatus in subheading 8543.80.90, HTSUSA. The rate of duty is 3.9% ad valorem.

Effect on other rulings:

Ruling #HQ 083580, May 10, 1988, held that the "Elementary Spelling Ace," "Word Wiz," "Language Master 3000" and "Word Master" were all classifiable under 8472.90.80, HTSUSA, which provides for office machines. In so far as the "Elementary Spelling Ace" and the "Word Wiz" are designed and marketed for children, these two articles are properly classifiable in subheading 8543.80.90, HTSUSA. Ruling #HQ 083580 and #NY 845270 no longer reflect the position of the Customs Service regarding the "Elementary Spelling Ace" and the "Word Wiz." Therefore, these two Rulings are modified under the authority of section 177.9(d), Customs Regulations.

Sincerely,

John Durant, Director
Commercial Rulings Division

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