CLA-2 CO:R:C:M 951965 MBR
Area Director of Customs
New York Seaport
6 World Trade Center
New York, NY 10048
RE: Reconsideration of HQ 950926; "Stencils & Pencils" Set; Toy
Dear Area Director:
This is in reply to your memorandum of May 29, 1992,
requesting reconsideration of HQ 950926, dated March 31, 1992,
regarding the classification of the "Stencils & Pencils" set,
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The merchandise at issue is a set consisting of a 6.5" X
3.5" yellow plastic stencil depicting a rough outline of a farm
and farm animals, four colored pencils, and three erasers (shaped
like a cow, a rabbit, and a heart).
ISSUE:
What is the classification of the "Stencils & Pencils" set
under the Harmonized Tariff Schedule of the United States
(HTSUS)?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
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...
In HQ 950926 we classified the "Stencils & Pencils" set
under subheading 9503.90.60, HTSUS, which provides for: "[o]ther
toys: [o]ther: [o]ther: [o]ther toys (except models), not having
a spring mechanism."
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The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) to the HTSUS, regarding chapter 95, page
1585, state: "[t]his Chapter covers toys of all kinds whether
designed for the amusement of children or adults."
You argue that: "[i]t must be pointed out that the stencils
are not designed to amuse." We disagree. Samples are potent
witnesses, and this sample speaks for itself. Every design
feature of this article delineates its design for the amusement
of children. The packaging itself is clearly directed towards
the amusement of children, and is printed with letters, hearts
and stars in pink, red, orange, blue, green, and yellow. The
crudeness of the pencils, the stencils, and the erasers, limits
their use to that of merely amusement. For example, it would be
difficult, if not impossible, to accurately reproduce a likeness
of anything using this pencils and stencils set.
You argue that the "Stencils & Pencils" set is classifiable
in chapter 90. However, the Legal Notes to chapter 90 state:
1. This chapter does not cover:
(ij) Articles of chapter 95.
Therefore, since it is emphatically our position that the
set at issue is designed to amuse children, and is classifiable
in chapter 95, it is therefore not classifiable in chapter 90,
under any circumstances.
You argue that if the instant merchandise, which is designed
for children, is classifiable as a toy in chapter 95, then
consequently, all stencils (presumably whether or not for
professionals such as architects, interior decorators, etc.)
would also be classifiable as toys in chapter 95. We disagree.
Only those articles which are "designed for the amusement of
children or adults" are classifiable in chapter 95, and therefore
excluded from chapter 90.
HOLDING:
The "Stencils & Pencils" set is classifiable in subheading
9503.90.60, HTSUS, which provides for: "[o]ther toys: [o]ther:
[o]ther: [o]ther toys (except models), not having a spring
mechanism." For the above stated reasons, HQ 950926, dated March
31, 1992, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division
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CC: Ms. Vivian Gonzalez
C-Air International, Inc.
11222 S. La Cieneca Blvd.
Suite 470