CLA-2 CO:R:C:G: 085267 DPS
9608.20.0000
John M. Peterson, Esquire
Neville, Peterson & Williams
39 Broadway
New York, N.Y. 10006
RE: Totes Graffitti Gear
Dear Mr. Peterson:
This is in response to your letter of July 11, 1989, on
behalf of your client, Totes, Incorporated, in which you
requested Headquarters reconsideration of New York Ruling Letter
(NYRL) 840860 of May 23, 1989, regarding the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of Totes' "Graffiti Gear." A meeting
with members of my staff was held on November 11, 1989, in which
you reiterated your client's position. Your submission of
January 2, 1990, again outlined your client's views, but added no
new information relevant to the classification decision.
FACTS:
The subject merchandise, described as a "Graffiti Gear"
drawing set, is stated to consist of the following four items,
although only three items (the jacket, markers, and an
idea/instruction poster) were provided to Headquarters as
samples: (1) a white jacket made of 100% nonwoven spunbonded
"Tyvec" (or Tyvek) olefin material, it has a zippered front
opening, a high collar, long sleeves and elastic at the end of
each sleeve and the bottom of the jacket to hold it snugly
against the wearer's body; (2) a set of water-based, washable
felt tipped markers in varying colors with plastic container; (3)
a plastic stencil featuring alphabetical, numerical, and symbolic
patterns intended to be used to draw on the jacket at the user's
discretion; and (4) a cardboard shield/blotter, which is to be
used as a protective surface during drawing on the jacket. The
Tyvec jacket is a product of Taiwan; the markers will be products
of Italy, or some other source country to be determined, and the
stencil and blotter will be from England, or some other source
country to be determined.
The importer states that the subject merchandise is a unique
"drawing toy designed for the amusement of children and
teenagers." Consistent with this view, the importer asserts that
the subject "Graffiti Gear" is classifiable, pursuant to GRI 1,
under subheading 9503.70.8000, HTSUSA, the provision for other
toys, put up in sets or outfits, other. In support of this
position, the importer argues that the play aspect of the item
bears on its identity as a toy. The importer further states, in
the original submission at page 8, that "the primary function of
the toy ["Graffiti Gear"] is that of drawing, an activity
intended for the amusement of the user." Implicit in the
importer's position is the assertion that this item should be
considered a toy.
NYRL 840860 referred to the subject merchandise as a set,
and stated that the essential character of the merchandise was
imparted to it by the jacket. Therefore, NYRL 840860 classified
the subject "Graffiti Gear" item under subheading 6210.10.4020,
HTSUSA, the provision which covers the "Tyvec" jacket.
ISSUES:
(1) Whether the subject "Graffiti Gear" item is considered an
"other toy put up in sets," consistent with items
normally classified under subheading 9503.70, HTSUSA.
(2) Whether, for tariff purposes, the "Graffiti Gear" item is
considered a set.
(3) How the "Graffiti Gear" product is classified.
LAW & ANALYSIS:
The General Rules for the Interpretation of the Harmonized
System (GRI's) govern classification under the Harmonized Tariff
Schedule. According to GRI 1, the primary consideration in
determining whether merchandise should be classified in a heading
should be given to the language of the heading and any relevant
chapter or section notes, and, provided such headings or notes do
not otherwise require, according to the remaining GRI's, taken in
order.
Here, the first question to be considered is whether a
single heading exists which covers the subject "Graffiti Gear"
article (hereinafter Graffiti Gear). The importer argues that
subheading 9503.70, HTSUSA, covers the subject merchandise. In
support of this position, the importer refers to the Explanatory
Notes to the HTSUSA, which constitute the official interpretation
of the tariff at the international level and cites the following
language from Explanatory Note 95.03, at p. 1588:
Collections of articles, the individual items of
which if presented separately would be classified
in other headings in the Nomenclature, are
classified in this Chapter when they are put up in
a form clearly indicating their use as toys (e.g.,
instructional toys such as chemistry, sewing,
etc., sets).
The part of the Explanatory Notes that the importer omitted from
the discussion is equally, if not more important to this case,
than the language set forth above. The language from the
Explanatory Notes which counsel did not refer to concerns items
that are excluded from Heading 9503. The continuation of
Explanatory Note 95.03, states, at p. 1589:
This heading also excludes:
(a) Paints put up for children's use (heading 32.13).
(b) Modelling pastes put up for children's amusement
(heading 34.07).
(c) Children's picture, drawing or colouring books of
heading 49.03.
(d) Transfers (heading 49.08).
...
(h) Crayons and pastels for children's use, of heading
96.09.
(ij) Slates and blackboards, of heading 96.10.
The items described above are expressly excluded by the
Explanatory Notes from the "other toy" provision. The items
listed above, particularly (a), (c), (h) and (ij), have primarily
a drawing and craft function. Although they may tend to amuse
those who use them, such amusement is incidental to their primary
purpose. Graffiti Gear's component parts, especially the
markers, are more akin to the items specifically excluded by the
Explanatory Notes to Heading 9503 than those included therein.
Furthermore, we do not consider Graffiti Gear to be an
instructional toy similar to the exemplars described in the
Explanatory Notes (chemistry or sewing sets). Accordingly, it is
Customs' position that Graffiti Gear is not classifiable in
subheading 9503.70.8000, HTSUSA, the provision for other toys,
put up in sets, other.
No heading, by itself, covers the subject merchandise as
packaged. Because the three components of the Graffiti Gear
product are classifiable under three seperate headings, we must
determine whether the product is a set to be classified in
accordance with the principles of GRI 3. The Explanatory Notes
to GRI 3(b) set forth guidelines in determining what constitutes
a "set". The relevant note states, in part:
(X) 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).
In this case, at least two of the above "set" criteria are
satisfied. First, the subject merchandise consists of at least
two different articles which are prima facie classifiable in
different headings. Secondly, the items are put up in a manner
suitable for sale directly to consumers without repacking.
The third criterion, that the goods consist of articles put up
together to meet a particular need or carry out a specific
activity, does not appear to be satisfied. The markers are used
for drawing. The jacket, although intended to be written upon by
the purchaser, does not exclusively serve that function. It is
not simply a medium for the other components of the Graffiti Gear
package. Although flimsy, the jacket functions as a jacket with
or without the designs. Decorated or not, the jacket can be
worn. The activity of drawing is unrelated to the function of
the jacket.
Marketing and packaging information depicts children and
teenagers wearing their decorated Graffiti Gear jackets, as well
as decorating them. These activities are distinct so as to
eliminate these items, even if packaged together, from being
considered a set. Information obtained through sources other
than the importer, indicate that a variety of accessory packs
which contain squeeze paint, sparkle paint, fluorescent markers
and other items for use in decorating the jackets are marketed
separately. This fact further confirms Customs view as to the
distinct nature of the graffiti gear components and their failure
to satisfy the set requirements of GRI 3(b). Accordingly, the
subject merchandise is not considered to be a set in accordance
with the guidelines in the Explanatory Notes to GRI 3(b).
Rather, each item is classifiable separately under GRI 1.
HOLDING:
The Graffiti Gear jacket is classifiable in subheading
6210.10.4025, HTSUSA, which provides for garments, made up of
fabrics of heading 5602, 5603, 5903, 5906 or 5907, other, other.
Items classified under this subheading are subject to a duty rate
of 17 percent ad valorem. The jacket falls within textile
category designation 659. As a product of Taiwan this
merchandise will be subject to the requirement of visa and quota
restraints based upon international textile trade agreements.
The applicable subheading for the markers is 9608.20.0000,
HTSUSA, which provides for felt tipped and other porous-tipped
pens and markers. Items classified under this provision are
subject to a duty rate of 8 percent ad valorem.
The color "Idea Poster" and instruction sheet is
classifiable under subheading 4911.99.6000, the provision for
other printed matter, other, printed on paper in whole or in part
by lithographic process. Items classified under this provision
are subject to a duty rate of 0.4 percent ad valorem.
None of the samples presented to Headquarters by the
importer's counsel contained the plastic stencil or the cardboard
shield/blotter. Nor did the packaging indicate that the two
items were even included in the Graffiti Gear kit. Without
samples of these items, we are unable to provide a definitive
classification of the plastic stencil and blotter. If the
importer intends to include these items in the Graffiti Gear
package, then samples should be provided, and a ruling on those
specific items should be requested.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
textile restraint (quota/visa) categories, you should contact
your local customs office prior to importing the merchandise to
determine the current applicability of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division