HQ 0950926 - Stencils and Pencils package; erasers; GRI 3(b); set; essential character; EN 90.17; 088323 - United States International Trade Commision Rulings

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HQ 950926

March 31, 1992

CLA-2 CO:R:C:M 950926 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.60

Ms. Vivian Gonzalez
C-Air International, Inc.
11222 S. La Cieneca Blvd.
Suite 470
Inglewood, California 90304

RE: Stencils and Pencils package; erasers; GRI 3(b); set; essential character; EN 90.17; 088323

Dear Ms. Gonzalez:

This is in response to your letter dated November 21, 1991, on behalf of Lisa Frank, Inc., requesting the tariff classification of "Stencils and Pencils" and "Notepad" packages from Taiwan under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter and samples were forwarded to this office for a response. You have received the classification of the "Notepad" set in New York Ruling 869225.

FACTS:

The article under consideration is a "Stencils and Pencils" package which contains three small erasers, four colored pencils and one stencil which contains the outline of farm animals and a barn. All the articles are packaged together on cardboard which has a plastic cover. The invoice value of a package is 41 cents.

ISSUE:

What is the proper tariff classification of the "Stencils and Pencils" package under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." When goods are prima
facie classifiable under two or more headings GRI 3 is applicable. In this case, classification is determined by application of GRI 3(b) which provides:

Goods put up in sets for retail sale shall be classified as if they consisted of the component which gives them their essential character.

To determine what is a "set put up for retail sale" the Explanatory Notes (EN) of the Harmonized Commodity Description and Coding System (HCDCS) may be utilized. EN X to GRI 3(b) provides a three part test for "goods put up in sets for retail sale":

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).

HCDCS, Vol. 1, p. 4. The Explanatory Notes, although not dispositive, are looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, EN VIII to GRI 3(b) provides further factors which determine the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods. HCDCS, Vol. 1, p. 4.

In the present situation, the "Stencils and Pencils" package consists of three different articles, each having different classifications (e.g., erasers in heading 4016, pencils in heading 9609). The articles are put up together for a child to outline the animal and barn figures using the stencil and color pencils, color in the figures and erase any mistakes. The articles are packaged together for sale to the end user. Thus, the "Stencils and Pencils" package is a set.

We are of the opinion that the essential character of the "Stencils and Pencils" set is the stencil. The stencil is the main feature of the set because the child will buy the package to be able to outline the animal figures on the stencil. The colored pencils and erasers merely facilitate the use of the stencil. Moreover, any type of writing instrument can be used with the stencil.

Heading 9017, HTSUS, provides for "Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof...". Explanatory Note (EN) 90.17 of the Harmonized Commodity Description and Coding System (HCDCS) states that this heading incudes:

(A) Drawing instruments.

(1) Pantographs and eidographs for smaller, larger or same scale reproductions of maps, plans, drawings, parts to be machined, etc. The heading includes such instruments used for course plotting in navigation. (2) Drafting machines generally using a system of parallelograms, with or without drawing boards or tables....
(3) Drawing compasses, dividers, reduction compasses, spring bows, mathematical drawing pens, dotting wheels, etc., whether in a case (e.g., drawing sets) or separately.
(4) Set squares (standard, hatching, wood or metal working) adjustable squares, T squares (standard or articulated), drawing curves rulers (flat, square, hatching (parallel rulers), standard, etc.). (5) Protractors, from the ordinary protractors found in drawing sets to the complex protractors as used, for example, in engineering.
(6) Stencils of a kind clearly identifiable as being specialized as drawing instruments...

HCDCS, Vol. 4, p. 1486.

The Explanatory Note language for stencils provides that Heading 9017 covers stencils "...of a kind clearly identifiable as being specialized as drawing instruments" (emphasis in original). Stencils which contain outlines of farm animals and a barn are not ejusdem generis with the drawing instruments identified in Heading 9017 and are not of a kind clearly identifiable as being specialized as drawing instruments.

The stencils are clearly designed principally for amusement, in this case, for children. The stencils are described as "Other toys...: Other toys...: Other: Other: Other toys (except models), not having a spring mechanism", and are classified in subheading 9503.90.60, HTSUS.

Pursuant to GRI 3(b), the remaining articles in the "Stencils and Pencils" package are classified with the stencils.

HOLDING:

The "Stencils and Pencils" package is classified as "Other toys...: Other toys...: Other: Other: Other toys (except models), not having a spring mechanism", and are classified in subheading 9503.90.60, HTSUS.

Sincerely,

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