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HQ 957898




November 1, 1996

CLA-2 RR:TC:MM 957898 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9611.00.00

Michele R. Markowitz, Esq.
Sharretts, Paley Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004

RE: Reconsideration NYRL 808757; Sesame Street Stamp Factory; EN 96.11, 95.03; HRL 950700

Dear Ms. Markowitz:

This is in response to your letter of March 30, 1995, on behalf of Playtime Products, Inc., requesting reconsideration of New York Ruling Letter (NYRL) 808757, dated April 11, 1995, which classified a "Sesame Street Stamp Factory" as date, sealing or numbering stamps, and the like (including devices for printing or embossing labels), designed for operating in the hand under heading 9611, of the Harmonized Tariff Schedule of the United States (HTSUS). You believe the article is properly classified as a toy under heading 9503, HTSUS. A sample of the stamp set was submitted for our review.

FACTS:

The subject article consists of an ink pad, and 14 different rubber stamps with plastic handles depicting various Sesame Street characters. The ink pad as well as each stamp is mounted in a fitted plastic case. The subject articles are packaged in vibrant colors. They are sold in toy stores or the toy section of department stores.

ISSUE:
Whether the "Sesame Street Stamp Factory" is classifiable as a stamps under heading 9611, HTSUS, or as toys under heading 9503, HTSUS?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

The "Sesame Street Stamp Factory" consists of components which are classifiable individually in various headings. The stamps are classifiable in heading 9611, HTSUS, the plastic case in heading 3923, HTSUS, and the ink pad is classifiable in heading 9612, HTSUS. Upon considering whether any one heading would accommodate these components, we look to heading 9503, HTSUS.

Heading 9503, HTSUS, provides for "Other toys...and accessories thereof," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 suggest that a toy is an article designed for the amusement of children or adults. The EN to heading 9503 indicate that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets, and that collections of items separately classifiable in other headings are classified in chapter 95 when put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry sets, sewing sets, etc.). The EN also state that heading 9503 excludes children's picture, drawing or coloring books of heading 4903, and crayons and pastels for children's use, of heading 9609.

The recently added "Subheading Explanatory Note to Subheading 9503.70" states in pertinent part that, for the purpose of the subheading, "[s]ets" are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included."

In Headquarters Ruling Letter (HRL) 950700, issued August 25, 1993, we discussed the circumstances in which certain items may be classified in subheading 9503.70, as toys put up in sets. We stated that the application of the toy set provision is relatively straightforward when each item within a set would individually be classified as a toy, as opposed to an assortment (such as in this case) which consists entirely (or partly) of items that individually would be classified elsewhere in the HTSUS. In either case, we noted that subheading 9503.70, encompasses a combination of two or more mutually complementary, complete articles in a retail package, the essential character of which is established by the combination of the items, not by any individual item. No individual article should predominate over any other in the combination, and the components should generally be used together to provide amusement.

In this case, we find that none of the components predominates over another, none is individually classifiable as a toy, but all are directly related to stamping. Although the individual articles are not excluded by name from heading 9503 (as would be coloring books and crayons), we find that the items are put up in a form to be principally used to stamp not primarily to amuse. "Sesame Street Stamp Factory" is therefore not classified in subheading 9503.70, HTSUS. See HRLs 957895 dated December 14, 1995, and 958152 dated April 4, 1996, classifying light up "desks" with patterns for tracing and drawing as drawing instruments, not toys.

The article cannot be classified by reference to GRI 1 because its individual components are classifiable in different headings. In pertinent part, GRI 2(b) states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) states, in pertinent part, that:
when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which states in pertinent part that:

[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

With respect, initially, to whether the "Sesame Street Factory article comprises "goods put up in sets," we look to Explanatory Note X to GRI 3(b), which indicates that for purposes of the rule, the term "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 (e.g., in boxes or cases or on boards).

As previously noted, the subject goods meet criteria (a) and (c). With regard to criterion (b), we have found that the items are put up together to carry out the specific activity of stamping. The article is a set.

In order to determine the essential character of the set, we next view Explanatory Note VIII to GRI 3(b), which provides the following guidance:

The factor which determines essential character will vary as between different kinds of goods. It 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.

The stamps themselves predominate over the article's other components due not only to their greater numbers, but also to the fact that they create the outline of the figurine which will be stamped. The stamps impart the set's essential character.

Heading 9611, HTSUS, provides for date, sealing or numbering stamps, and the like (including devices for printing or embossing labels), designed for operating in the hand. We find that "Sesame Street Stamp Factory" is correctly classified in heading 9611. The proper heading is 9611, HTSUSA. This heading has no subheadings.

HOLDING:

The article identified as "Sesame Street Stamp Factory" is properly classified under heading 9611, HTSUSA. The applicable duty rate is 4.3% ad valorem.

Sincerely,

John Durant, Director

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