CLA-2 RR:TC:MM 958805 LTO
Mr. M. Barry Levy
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004
RE: "Trace N' Color;" HQ 957895 modified; HQ 953922; headings 3926, 9503; "draw"; "drawing"; EN 90.17; EN to chapter 95; EN 95.03
Dear Mr. Levy:
This is in reference to HQ 957895, issued to you on December 14, 1995, concerning the classification of an article identified as the "Trace N' Color" under the Harmonized Tariff Schedule of the United States (HTSUS). HQ 957895 was issued in response to your request of March 22, 1995, on behalf of your client, Toy Max. This is a reconsideration of HQ 957895.
FACTS:
The article in question is the "Trace N' Color" (item 7008), which is designed for use by children of ages five and up. The "Trace N' Color" consists of a "light box," six sheets of printed figures and scenes/settings, six colored pencils, twelve blank sheets of paper, a "Creepy Crawlers Trace N' Color" sticker (to place on the drawing surface) and a sheet of instructions. The "light box," which serves as a lighted drawing surface and carrying case, consists of a plastic case incorporating a lighting module. When three "D" alkaline batteries (not included) are inserted into the "light box" and a switch is turned on, a 3.6 volt light bulb illuminates the box's drawing surface. The child chooses a sheet or sheets of printed figures and/or scenes to place on the drawing surface. After the light is turned on, the figures/scenes can be traced on the blank - 2 -
paper and then colored. All of the components are imported in a decorative cardboard box, suitable for direct sale without repacking.
ISSUE:
Whether the "Trace N' Color" is classifiable as a drawing instrument under heading 9017, 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, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
In HQ 957895, dated December 14, 1995, we determined that the "Trace N' Color" could not be classified as a "toy" or "toy set" under heading 9503, HTSUS. We then held that the "Trace N' Color" was a GRI 3(b) set, and that its essential character was imparted by the "light box." While the above remains our position with regard to the exclusion of this merchandise from heading 9503, HTSUS, we believe that we incorrectly classified the the "Trace N' Color," according to GRI 3(b), under subheading 3926.10.00, HTSUS, which provides for other articles of plastics: office or school supplies.
Heading 9017, HTSUS, provides for drawing instruments, including "drawing sets." EN 90.17, pg. 1485, lists various apparatus or devices considered to be drawing instruments of heading 9017, HTSUS. There is no indication that an article's degree of sophistication is a relevant criteria for heading 9017, HTSUS, purposes (with the exception of "stencils," which EN 90.17 states must be "clearly identifiable as being specialized as drawing instruments"). In fact, EN 90.17 lists "drawing compasses" and "ordinary protractors," hardly sophisticated apparatus.
The term "drawing" is not defined in the text of the HTSUS or the Explanatory Notes. When terms are not so defined, they are construed in accordance with their
common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 - 3 -
CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
The term drawing means "the art or technique of representing an object or outlining a figure, plan, or sketch by means of lines," while the term draw means "to produce a likeness or representation of by making lines on a surface." Webster's Ninth New Collegiate Dictionary, pg. 381-382 (1990). The "Trace N' Color" is designed, and includes all of the components necessary, to outline a figure and produce a likeness by means of making lines on a surface. The device is therefore classifiable, according to GRI 1, as a drawing instrument under heading 9017, HTSUS, and it is unnecessary to resort to GRI 3. Specifically, the "Trace N' Color" is classifiable under subheading 9017.20.90, HTSUS, which provides for other drawing instruments. See HQ 953922, dated November 17, 1993 (wherein we classified the "Video Painter," a sketching and drawing system which allowed the user to create a wide variety of colorful images on a television set or video monitor, under heading 9017, HTSUS).
HOLDING:
The "Trace N' Color" is classifiable under subheading 9017.20.90, HTSUS, which provides for other drawing instruments. The corresponding rate of duty for articles of this subheading is 5.3% ad valorem.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division