CLA-2 RR:CR:GC 961099 MMC
Ms. Sally Berghauser, Product Line Specialist
Paper Magic Group, Inc.
P.O. Box 977
Scranton, PA 18501
RE: Mickey's Stuff for Kids Egg Design Easter Egg Color & Stencil
Kit
Dear Ms. Berghauser:
This is in response to your October 22, 1997, letter
requesting a binding classification for an article identified as
Item # 610562 "Mickey's Stuff for Kids Egg Design Easter Egg
Color & Stencil Kit," under the Harmonized Tariff Schedule of
the United States (HTSUS). A sample was included for our
examination.
FACTS:
The "Mickey's Stuff for Kids Egg Design Easter Egg Color &
Stencil Kit" consists of 6 different packets of coloring
crystals, a copper egg dipper, 3 plastic stencils, 3 food
coloring pens and 6 paper rings to act as stands for the eggs.
To use the kit, the color crystals are added to a « cup of cool
water to dissolve. A hard boiled egg is then placed on the metal
egg holder and dipped into the various cool water dyes. Once
dyed, a user may or may not choose to place one of the three
stencils on the egg and trace the design with the coloring pens.
ISSUE:
What is the proper classification of the "Mickey's Stuff
for Kids Egg Design Easter Egg Color & Stencil Kit?"
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). GRI 1 provides that
the classification of goods shall be determined according to the
terms of the headings of the tariff schedule 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, the remaining
GRIs may then be applied.
Heading 3212, HTSUS, provides for [p]igments (including
metallic powders and flakes) dispersed in nonaqueous media, in
liquid or paste form, of a kind used in the manufacture of paints
(including enamels); stamping foils; dyes and other coloring
matter put up in forms or packings for retail sale. It describes
the dyes of the subject article. Heading 4823, HTSUS, provides
for [o]ther paper, paperboard, cellulose wadding and webs of
cellulose fibers, cut to size or shape; other articles of paper
pulp, paper, paperboard, cellulose wadding or webs of cellulose
fibers. It describes the paper rings. Heading 7419, HTSUS,
provides for [o]ther articles of copper, and describes the egg
dipper. Heading 9017, HTSUS, provides for [d]rawing, 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. It describes the stencils.
Heading 9608, HTSUS, provides for [b]all point pens; felt tipped
and other porous tipped pens and markers; fountain pens,
stylograph pens and other pens; duplicating styli; propelling or
sliding pencils (for example, mechanical pencils); pen-holders,
pencil holders and similar holders; parts (including caps and
clips) of the foregoing articles, other than those of heading
9609. It describes the food coloring pens. Inasmuch as the
"Mickey's Stuff for Kids Egg Design Easter Egg Color & Stencil
Kit" is described by 4 headings, it cannot be classified
according to GRI 1.
GRI 2(a) is inapplicable because it applies to incomplete or
unfinished articles, and the "Mickey's Stuff for Kids Egg Design
Easter Egg Color & Stencil Kit" is imported in a finished
complete condition. GRI 2(b) states, in pertinent part, that any
reference in a heading to a material or substance shall be taken
to include a reference to mixtures or combinations of that
material or substance with other materials or substances. The
classification of goods consisting of more than one material or
substance shall be according to the principles of GRI 3.
GRI 3(a) states that when, by application of rule 2(b) or
for any other reason, goods are, prima facie, classifiable under
two or more headings, the heading which provides the most
specific description shall be preferred to headings providing a
more general description. However, when two or more headings
each refer to part only of the materials or substances contained
in mixed or composite goods or to part only of the items in a set
put up for retail sale, those headings are to be regarded as
equally specific in relation to those goods, even if one of them
gives a more complete or precise description of the goods. As
the headings under consideration refer to part only of the
"Mickey's Stuff for Kids Egg Design Easter Egg Color & Stencil
Kit," GRI 3(b) must be considered.
GRI 3(b) states that mixtures, composite goods consisting of
different materials or made up of different components, and goods
put up in sets for retail sale, which cannot be classified by
reference to 3(a), shall be classified as if they consisted of
the material or component which gives them their essential
character, insofar as this criterion is applicable. Since the
subject goods consist of various items sold together as sets, we
must first determine if, for tariff purposes, it is a set put up
for retail sale as defined by GRI 3(b).
The Harmonized Commodity Description And Coding System
Explanatory Notes (EN's) constitute the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the EN's
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 EN's should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
Explanatory Note (X) to GRI 3(b), at page 5, states that 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).
We are of the opinion that the "Mickey's Stuff for Kids Egg
Design Easter Egg Color & Stencil Kit" qualifies as a set of GRI
3(b). The articles comprising the kit are, prima facie,
classifiable in different headings. Moreover, they are designed
to be used together to carry out the specific activity of
decorating eggs and they are put up in a manner suitable for sale
directly to users without repacking. Accordingly, we must
determine which of the kit's articles imparts the essential
character to the set.
In general, essential character has been construed to mean
that 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),
at page 4, states that the factors which help determine essential
character will vary as between different kinds of goods. It may,
for example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
a constituent material in relation to the use of the goods.
We are of the opinion that the dye crystals' role in
relation to the rest of the articles in the kit establishes the
set's essential character. The dipper and paper stands merely
have supporting roles in the use of the kit. The stencils and
pens are merely used to accent the basic coloration created by
the various dyes. Furthermore, the dyes are used to color an
entire egg. Based on these factors we are of the opinion that
the "Mickey's Stuff for Kids Egg Design Easter Egg Color &
Stencil Kit" is classified in heading 3212, HTSUS, specifically
subheading 3212.90.0050, HTSUS, which provides for [p]igments
(including metallic powders and flakes) dispersed in nonaqueous
media, in liquid or paste form, of a kind used in the manufacture
of paints (including enamels); stamping foils; dyes and other
coloring matter put up in forms or packings for retail sale:
[o]ther: [o]ther.
HOLDING:
The "Mickey's Stuff for Kids Egg Design Easter Egg Color &
Stencil Kit" is classified in subheading 3212.90.0050, HTSUS,
which provides for [p]igments (including metallic powders and
flakes) dispersed in nonaqueous media, in liquid or paste form,
of a kind used in the manufacture of paints (including enamels);
stamping foils; dyes and other coloring matter put up in forms or
packings for retail sale: [o]ther: [o]ther, with a 1998 column
one duty rate of 3.1 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings