CLA-2 RR:CR:TE 963475 gah
Mr. John Peterson
Neville, Peterson & Williams
80 Broad Street, Suite 3400
New York, New York 10004
RE: Modification of 085267, classification of a jacket, markers, and instructional poster and sheet
Dear Mr. Peterson:
This is in regard to Headquarters Ruling (HQ) 085267 that was issued to you on May 9, 1990, which addressed the tariff classification of Totes Graffiti Gear under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed this ruling and have determined that HQ 085267 is incorrect in part. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice was published on December 1, 1999, in the Customs Bulletin, Volume 33, Number 48, proposing to modify HQ 085267. No comments were received in response to this notice.
Therefore, this ruling modifies HQ 085267 and sets forth the correct classification for the drawing set.
FACTS:
The merchandise is described as a "Graffiti Gear" drawing set, and consists of the following four items: (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.
In HQ 085267, dated May 9, 1990, Customs held, among other things, that the articles of the set were separately classified. Our reasoning was that the separate articles, although useable together, could also be used for separate activities or needs, and therefore did not meet criteria (b) of the GRI 3 (b) Explanatory Note of put up to meet a particular need or specific activity.
ISSUE:
Is the Graffiti Gear kit a set put up for retail sale?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
Heading 6210, HTSUS, covers garments made up of fabrics of heading 5602, 5603, 5906 or 5907. The jacket is classified therein. Heading 9608, HTSUS, covers, among other things, felt tipped and other porous-tipped pens and markers. The markers are classified therein. Heading 4911, HTSUS, covers other printed matter, including printed pictures and photographs. The instructional poster and sheet are classified therein.
GRI 3(a) indicates that when goods are classifiable in more than one heading, headings which refer to part only of the items put up for retail sale, the headings are to be regarded as equally specific.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. 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 thus useful in ascertaining the classification of merchandise under the System. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to GRI 3(b) states that to meet the criteria of a set put up together for retail sale, articles must:
(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).
Applying the above GRI 3(b) EN criteria, the goods are several different goods classifiable in different headings. Criteria (a). The goods are put up together to carry out the specific activity of coloring a craft project. Criteria (b). The reasoning as to sets criteria set forth HQ 085267 is specifically revoked. A set may be put up together to meet a particular need or carry out a specific activity, such as painting a decorated article of clothing, and yet be capable of disassembly into articles useful for other purposes. The examples of sets described in EN (X)(1-3) to GRI 3(b) are also illustrative of this point. The focus in criteria (b) is whether they work together to meet a need or carry out an activity, not whether that is all they are capable of doing. They are put up in a manner suitable for sale directly to users without repacking in cardboard box frames. Thus, the drawing set meets criteria (a-c), of the GRI 3(b) EN, and therefore is a set put up for retail sale.
To be classified at GRI 3(b), the set must be classifiable as if the set consisted of the one article which gives the whole its essential character, insofar as this criterion is applicable. The Explanatory Notes indicate that the characteristic which gives the set its essential character 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.
In the instant case, the nature of the jacket and the role of it in relation to the use of the goods, both favor a finding that it provides the essential character to the set. The painted jacket can be worn many times, and new designs added to it over time. Thus, we find that the jacket provides the essential character to the set, and the set is classified accordingly. While we revoke the reasoning and result as to GRI 3(b) analysis in HQ 085267, we affirm the analysis and finding that the drawing set is not an other toy, put up in sets or outfits, of subheading 9503.70, HTSUS. For your information, you may wish to read Classification of Sets under the HTS, an informed compliance publication of the U.S. Customs Service, dated September 1999, available at www.customs.gov. See also, HQ 961956, dated October 8, 1999.
HOLDING:
The Graffiti Gear set is classifiable in subheading 6210.10.9040, HTSUSA, which provides for garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907, of fabrics of heading 5602 or 5603, other, other, other, other. Items classified under this subheading are subject to a duty rate of 16.5 percent ad valorem. The jacket falls within textile category 659. HQ 085267 is hereby modified.
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 negotiations and changes, we suggest that your client 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 the local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
In accordance with 19 U.S.C. 1625 (c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division