CLA-2 OT:RR:CTF:VS H055816 EE
Port Director
Port of Chicago
U.S. Customs and Border Protection
9915 Bryn Mawr Avenue
Rosemont, IL 60018
RE: Internal advice; Subheading 9817.00.40, HTSUS; Harcourt Manipulative Mathematical Kits
Dear Sir:
This is in reply to your memorandum dated March 9, 2009, under the cover of which you forwarded a request for internal advice submitted by Katten Muchin Rosenman LLP, on behalf of ETA / Cuisenaire (“ETA”), concerning the applicability of subheading 9817.00.40, Harmonized Tariff Schedule of the United States (“HTSUS”), to Harcourt Manipulative Mathematical Kits.
FACTS:
ETA’s Harcourt Manipulative Mathematical Kits (Item Nos. 153410884AB and 153410892AB) are claimed to be educational models that are used by students in grades 1-4. The math kits are imported in packaging that reach the end users of the merchandise. A sample of each kit was submitted with your request. The kits contain the following components:
Harcourt Manipulative Mathematical Kit -- Item No. 153410884AB
Base Ten Flat, blue, Manipulite™
Base Ten Rods, 20/set, blue, Manipulite™
Base Ten Units, 20/set, blue, Manipulite™
Coins, 44/set
Color Tiles, 30/set, 4 colors, Manipulite™
Money, bills, 40/set, $1(20); $5(10); $10(10)
Pattern Blocks, Manipulite™ 27/set
Plane Shapes, Manipulite™, 78 pcs/set
Pop Cubes, 2 cm, 20/set, 2 colors red/blue
Ruler, 12” flexible plastic, printed two sides, 1/8 inch/cm
Spinner, transparent, plastic
Student’s Clock Face, 1 piece
Two-color Counters, 25/set, red/yellow, Manipulite™
Harcourt Manipulative Mathematical Kit -- Item No. 153410892AB
Base Ten Flat, blue, Manipulite™
Base Ten Rods, 20/set, blue, Manipulite™
Base Ten Units, 20/set, blue, Manipulite™
Coins, 44/set
Color Tiles, 30/set, 4 colors, Manipulite™
Fraction Tiles (Bars, 51/set), plastic
Money, bills, 45/set, $1(20); $5(10); $10(10); $20(5)
Pattern Blocks, Manipulite™ 27/set
Place Value Cubes, blank, blue, 16mm, 2/set with 50 blank ½” labels
Ruler, 12”, flexible plastic, printed two sides, 1/16”
Spinner, transparent, plastic
Student’s Clock Face, 1 piece
Two-color counters, 25/set, red/yellow, Manipulite™
The educational models included in these Harcourt Manipulative Mathematical Kits are plastic articles called “manipulatives” or “Manipulites™” that facilitate hands-on learning. ETA offers a wide variety of these products. Manipulatives are three dimensional objects that can be observed and handled by students to model abstract concepts. They include a variety of colorful shapes and objects, such as base ten blocks, pattern blocks, color tiles, cubes, tiles, and geometric shapes. These materials support the teaching of a wide variety of mathematical concepts including sorting, ordering, and comprehending mathematical operations.
You state that ETA has previously imported this merchandise from Taiwan through the Port of Chicago. ETA intends to purchase additional quantities of this merchandise which will result in prospective imports.
ISSUE:
Whether Harcourt Manipulative Mathematical Kits are eligible for duty-free treatment under subheading 9817.00.40, HTSUS.
LAW AND ANALYSIS:
The Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character (“Beirut Agreement”) is a multinational treaty that was enacted by the Third General Session of the United Nations Educational, Cultural and Scientific Organization (“UNESCO”) and came into force on August 12, 1954. Beirut Agreement, opened for signature between July 15-Dec. 31, 1949, 17 U.S.T. 1578. According to its Preamble, the purpose of the Beirut Agreement is to facilitate the international circulation of visual and auditory materials that are of an educational, scientific and cultural character. To this end, contracting States agree to accord certain benefits to qualifying materials including exemption from customs duties, quantitative restrictions, import licenses, and other restraints and costs. Beirut Agreement, supra note 1, art. III, paras. 1, 3. The United States implemented the Beirut Agreement on October 8, 1966 under Joint House Resolution 688. Pub. L. No. 89-634, 80 Stat. 879 (1966).
Public Law 89-634, inter alia, added a new headnote and item to part 6 of schedule 8 of the Tariff Schedules of the United States (1966), the predecessor to subheading 9817.00.40, HTSUS, and U.S. Note 1(a) to Subchapter XVII, Chapter 98, HTSUS. Subheading 9817.00.40, HTSUS, permits duty-free treatment for certain articles that are determined to be visual or auditory materials of an educational, scientific, or cultural character within the meaning of the Beirut Agreement. Subheading 9817.00.40, HTSUS, provides as follows:
Developed photographic film, including motion-picture film on which pictures or sound and pictures have been recorded; photographic slides; transparencies; sound recordings; recorded video tape; models (except toy models); charts; maps; globes; and posters; all of the foregoing which are determined to be visual or auditory materials in accordance with U.S. note 1(a) of this subchapter.
United States Note 1(a) to Subchapter XVII, Chapter 98, HTSUS, provides:
No article shall be exempted from duty under heading 9817.00.40 unless either –
(i) a Federal agency (or agencies) designated by the President determines that such article is visual or auditory material of an educational, scientific or cultural character within the meaning of the Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific, and Cultural Character (17 UST (pt. 2) 1578; Beirut Agreement), or
(ii) such article --
(A) is imported by, or certified by the importer to be for the use of, any public or private institution or association approved as educational, scientific, or cultural by a Federal agency or agencies designated by the President for the purpose of duty-free admission pursuant to the Nairobi Protocol to the Florence Agreement, and
(B) is certified by the importer to be visual or auditory material of an educational, scientific, or cultural character or to have been produced by the United Nations or any of its specialized agencies. For the purposes of subparagraph (i), whenever the President determines that there is, or may be, profitmaking exhibition or use of articles described in heading 9817.00.40 which interferes significantly (or threatens to interfere significantly) with domestic production of similar articles, he may prescribe regulations imposing restrictions on the entry under one of the above-cited subheadings of such foreign articles to insure that they will be exhibited or used only for nonprofitmaking purposes.
Articles satisfying each of the above requirements are entitled to duty-free treatment, assuming compliance with the requirements of section 10.121, CBP Regulations (19 C.F.R. § 10.121).
Counsel for ETA states that the Harcourt Manipulative Mathematical Kits are “educational models” eligible for duty-free treatment pursuant to the Beirut Agreement under subheading 9817.00.40, HTSUS. The term “model” is not defined in the HTSUS or the Explanatory Notes of the tariff subheading. When, as in this case, a tariff term is not defined in either the HTSUS or its legislative history, “the term's correct meaning is its common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576.
In the instant case, the Guide to the Operation of the Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific, and Cultural Character (“Guide”), which was published in 1969 following the meeting of government experts in 1967 to examine the application of the Beirut Agreement, provides guidance as to how a “model” is to be interpreted. Concerning models, the Guide provides:
With regard to models, the criteria of ‘instruct’ or ‘inform’ also are decisive. The experts noted that certain objects popularly called ‘models’ (e.g., model aeroplanes, model railways, plastic or other representations of animals, houses, people) cannot meet the requirements of the Agreement when they are primarily intended for use as collectors’ items, toys, or decorations. To establish its educational or instructional purpose, a model should show the step-by-step development of a subject or aspect of a subject, or its application should be verified in a specific course of a study, of which it is an integrated part. The purpose and effect of the material should be taken into account on a case-by-case basis. The experts concluded that until more experience had been gained with this class of material, consideration should be given in any cases of doubt to educational and informational purpose and effect, as well as to intent and context of use. (Emphasis added).
Counsel states that the manipulatives contained in the Harcourt Manipulative Mathematical Kits are concrete, three dimensional objects that can be viewed and physically handled by students to demonstrate or model abstract mathematical concepts. They are effective tools in mathematics education because they help children move from a concrete to an abstract level of understanding. At the concrete level, a mathematical concept is introduced with manipulatives; students explore the concept using the manipulatives in purposeful activity. Subsequently, at the representational level, a mathematical concept is represented using pictures of some sort to stand for the concrete objects (the manipulatives) of the previous stage; students demonstrate how they can both visualize and communicate the concept at a pictorial level. Finally, at the abstract level, mathematical symbols (numerals, operation signs, etc.) are used to express the concept in symbolic language; students demonstrate their understanding of the mathematical concept using the language of the mathematics. Counsel states that the National Council of Teachers of Mathematics has recommended manipulatives to support the teaching of a wide variety of mathematical concepts at all grade levels.
Based on your submission, the Harcourt Manipulative Mathematical Kits appear to show the step-by-step development of mathematical concepts and therefore support the education of mathematics. Accordingly, we find that the Harcourt Manipulative Mathematical Kits are “models” within the scope of Subheading 9817.00.40, HTSUS, as clarified by the Guide which we consider to be a reliable information source.
In order to qualify under subheading 9817.00.40, HTSUS, the imported merchandise must be authenticated by the federal agency designated to carry out the provisions of the Beirut Agreement to be visual or auditory materials of an educational, scientific, or cultural character within the meaning of the Beirut Agreement as required by U.S. Note 1(a)(i) to Subchapter XVII, Chapter 98, HTSUS.
You submitted copies of two U.S. Department of State DS-2040 forms, dated September 29, 2008, certifying that the Harcourt Manipulative Mathematical Kit -- Item No. 153410884AB and Item No. 153410892AB comply with the criteria set forth in the Beirut Agreement and are therefore entitled to
duty-free entry under subheading 9817.00.40, HTSUS. Based on these submissions, we find that the Harcourt Manipulative Mathematical Kits meet the requirements of U.S. Note 1(a)(i) to Subchapter XVII, Chapter 98, HTSUS.
HOLDING:
Based upon the information submitted, we find that the Harcourt Manipulative Mathematical Kits are eligible for duty-free treatment under subheading 9817.00.40, HTSUS.
This decision should be mailed to the internal advice applicant no later than sixty days from the date of this letter. On that date, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel and to the public via the CBP Home Page on the World Wide Web at www.cbp.gov, through the Freedom of Information Act, and by other methods of public distribution.
Sincerely,
Monika R. Brenner
Chief
Valuation & Special Programs Branch