CLA-2 CO:R:C:M 950926 KCC
Ms. Vivian Gonzalez
C-Air International, Inc.
11222 S. La Cieneca Blvd.
Suite 470
Inglewood, California 90304
RE: Stencils and Pencils package; erasers; GRI 3(b); set;
essential character; EN 90.17; 088323
Dear Ms. Gonzalez:
This is in response to your letter dated November 21, 1991,
on behalf of Lisa Frank, Inc., requesting the tariff
classification of "Stencils and Pencils" and "Notepad" packages
from Taiwan under the Harmonized Tariff Schedule of the United
States (HTSUS). Your letter and samples were forwarded to this
office for a response. You have received the classification of
the "Notepad" set in New York Ruling 869225.
FACTS:
The article under consideration is a "Stencils and Pencils"
package which contains three small erasers, four colored pencils
and one stencil which contains the outline of farm animals and a
barn. All the articles are packaged together on cardboard which
has a plastic cover. The invoice value of a package is 41 cents.
ISSUE:
What is the proper tariff classification of the "Stencils
and Pencils" package under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...." When goods are prima
facie classifiable under two or more headings GRI 3 is
applicable. In this case, classification is determined by
application of GRI 3(b) which provides:
Goods put up in sets for retail sale shall be classified as
if they consisted of the component which gives them their
essential character.
To determine what is a "set put up for retail sale" the
Explanatory Notes (EN) of the Harmonized Commodity Description
and Coding System (HCDCS) may be utilized. EN X to GRI 3(b)
provides a three part test for "goods put up in sets for retail
sale":
For the purposes of this Rule, the term 'goods put up in
sets for retail sale' shall be taken to mean goods which:
(a) consist of at least two different articles which are
prima facie, classifiable in different headings;
(b) consist of products or articles put up together to meet
a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to
users without repacking (e.g., in boxes or cases or on
boards).
HCDCS, Vol. 1, p. 4. The Explanatory Notes, although not
dispositive, are looked to for the proper interpretation of the
HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). In general,
essential character has been construed to mean the attribute
which strongly marks or serves to distinguish what an article is;
that which is indispensable to the structure, core or condition
of the article. In addition, EN VIII to GRI 3(b) provides
further factors which determine the essential character of goods.
Factors such as bulk, quantity, weight or value, or the role of a
constituent material in relation to the use of the goods are to
be utilized, though the importance of certain factors will vary
between different kinds of goods. HCDCS, Vol. 1, p. 4.
In the present situation, the "Stencils and Pencils"
package consists of three different articles, each having
different classifications (e.g., erasers in heading 4016,
pencils in heading 9609). The articles are put up together for a
child to outline the animal and barn figures using the stencil
and color pencils, color in the figures and erase any mistakes.
The articles are packaged together for sale to the end user.
Thus, the "Stencils and Pencils" package is a set.
We are of the opinion that the essential character of the
"Stencils and Pencils" set is the stencil. The stencil is the
main feature of the set because the child will buy the package to
be able to outline the animal figures on the stencil. The
colored pencils and erasers merely facilitate the use of the
stencil. Moreover, any type of writing instrument can be used
with the stencil.
Heading 9017, HTSUS, provides for "Drawing, marking-out or
mathematical calculating instruments (for example, drafting
machines, pantographs, protractors, drawing sets, slide rules,
disc calculators); instruments for measuring length, for use in
the hand (for example, measuring rods and tapes, micrometers,
calipers), not specified or included elsewhere in this chapter;
parts and accessories thereof...". Explanatory Note (EN) 90.17
of the Harmonized Commodity Description and Coding System (HCDCS)
states that this heading incudes:
(A) Drawing instruments.
(1) Pantographs and eidographs for smaller, larger or same
scale reproductions of maps, plans, drawings, parts to
be machined, etc. The heading includes such
instruments used for course plotting in navigation.
(2) Drafting machines generally using a system of
parallelograms, with or without drawing boards or
tables....
(3) Drawing compasses, dividers, reduction compasses,
spring bows, mathematical drawing pens, dotting wheels,
etc., whether in a case (e.g., drawing sets) or
separately.
(4) Set squares (standard, hatching, wood or metal working)
adjustable squares, T squares (standard or
articulated), drawing curves rulers (flat, square,
hatching (parallel rulers), standard, etc.).
(5) Protractors, from the ordinary protractors found in
drawing sets to the complex protractors as used, for
example, in engineering.
(6) Stencils of a kind clearly identifiable as being
specialized as drawing instruments...
HCDCS, Vol. 4, p. 1486.
The Explanatory Note language for stencils provides that
Heading 9017 covers stencils "...of a kind clearly identifiable
as being specialized as drawing instruments" (emphasis in
original). Stencils which contain outlines of farm animals and
a barn are not ejusdem generis with the drawing instruments
identified in Heading 9017 and are not of a kind clearly
identifiable as being specialized as drawing instruments.
The stencils are clearly designed principally for amusement,
in this case, for children. The stencils are described as "Other
toys...: Other toys...: Other: Other: Other toys (except models),
not having a spring mechanism", and are classified in subheading
9503.90.60, HTSUS.
Pursuant to GRI 3(b), the remaining articles in the
"Stencils and Pencils" package are classified with the stencils.
HOLDING:
The "Stencils and Pencils" package is classified as "Other
toys...: Other toys...: Other: Other: Other toys (except models),
not having a spring mechanism", and are classified in subheading
9503.90.60, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division