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HQ 086812

May 16, 1990

CLA-2 CO:R:C:G 086812 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9609.90.8000

Mr. John A. Slagle
Director, Customs Laws & Regulations
Wolf D. Barth Co. Inc.
7575 Holstein Ave.
Philadelphia, PA 834243

RE: Crayon Color Stick Set

Dear Mr. Slagle:

This ruling is in response to your letter of February 15, 1990, on behalf of your client, Binney & Smith, requesting the tariff classification of a crayon color stick set under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was provided for our examination.

FACTS:

The submitted sample consists of a box containing ten multicolored (pastel) erasable color stick crayons, an eraser, and a crayon sharpener. The crayons and the eraser are manufactured in Spain -- the sharpener in West Germany. The individual retail package is marked to indicate the country of origin of the individual components.

ISSUE:

What is the proper classification of the subject merchandise under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. When goods are prima facie classifiable under two or more headings, GRI 3 must be consulted. GRI 3(b) provides that goods put up in sets for retail sale shall be classified as if they consisted of the component that gives them their essential character.

The Explanatory Notes to GRI 3(b) indicate, in pertinent part, that "goods put up in sets for retail sale" means 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.

The instant crayon kit meets criteria (a), (b), and (c) above. At least two of the articles are classifiable in different headings: the crayons in Heading 9606 and the eraser in Heading 4016. All of the components allow for the expression of creative talents. Neatly packaged, this product is put up for sale directly to consumers without any need for repacking.

With the above elements satisfied, the essential character of the set must be determined to allow for proper classification. In general, "essential character" has been construed to mean the attribute which strongly marks or serves to distinguish an article. It may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.

It is our determination that the crayons impart the essential character of the set. The color sticks serve as the principal tool of creativity; the sharpener and eraser merely help define the image. Accordingly, the set as a whole is classifiable under the heading which applies to the crayons. Heading 9609, HTSUSA, provides for, inter alia, crayons.

HOLDING:

The crayon color stick set is classifiable in subheading 9609.90.8000, HTSUSA, which provides for other crayons (other than those encased in a rigid sheath), dutiable at 5.5 cents per gross plus 3.4 percent ad valorem.

As to the application of the specific rate of duty, it is our view that the boxes containing the crayons, eraser, and sharpener should be treated as one unit.

Sincerely,

John Durant, Director
Commercial Rulings Division

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