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CLA-2-96:S:N:N1:113-857749

TO : Director, Commercial Rulings Division Headquarters, U.S. Customs Service

FROM : Chief, National Import Specialist Branch 1 New York Seaport

SUBJECT: Pencil Kits & Geometry Set

Inquiry dated October 24, 1990, from Jeremy R. Page on behalf of Rolykit, Inc., is attached.

The items are a Rolykit Pencil Box (JS-210), a Rolykit Geometry Set (JS-270) and a Rolykit Junior Pencil Box (JS-100). The Rolykit Pencil Box (JS-210) contains 8 fiber tipped pens, 9 pencils, 1 ruler, and 1 pencil sharpener in a transparent/color storage box. The Rolykit geometry set (JS-270) contains 1 geometric triangle, 1 compass, 1 tube of compass leads, 1 eraser, 3 lead pencils, 1 propelling pencil, and 1 fine liner pen in a transparent/color storage box. The Rolykit Junior Pencil Box (JS-100) contains 6 fiber tipped pens, 6 pencils, 1 pencil sharpener, and 1 eraser in a transparent/color storage box.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation(GRI), taken in order. When good are prima facie classifiable under two or more headings GRI 3 is applicable. GRI 3(b) provides, in part:
goods put up in sets for retail sale... shall be classified as if they consisted of the component which gives them their essential character.

The Explanatory Notes to the HSTUSA constitute the official interpretation of the tariff at the international level. The Explanatory Notes to GRI 3(B) provide, in part:

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 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 repackaging (e.g. in boxes or cases or on boards).

The merchandise at issue consists of at least two different articles, which are prima facie classifiable in different headings, and it is put up in a manner suitable for sale directly to users. In addition, all of the components contribute to the activity of drawing and writing. Since the merchandise at issue meets this three-part test so as to constitute a set, the item that imparts the essential character of the set must be determined to allow for the proper classification.

The Explanatory Notes for GRI 3(b) state that:

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 factor or factors which determine essential character will vary with the goods. However, the nature of a component and its relation to the use of the good are often factors to be considered. In this case, each of the kits have the essential character of either writing, drawing or measuring.

The Rolykit (JS-200) series is aimed at young people between the ages of 6 and 20. The Rolykit Pencil Box (JS-210) contains items which contribute directly to writing and drawing. Although the cost of the storage box is more than the cost of the other component materials, the "essential character" of the set is clearly the "writing and drawing feature" which would prompt the consumer to buy the set. The classification as pencils or crayons with leads encased in a rigid sheath under 9609.10.0000, HTS, with a duty rate of 14 cents per gross plus 4.3 percent ad valorem would be deemed applicable.

The Rolykit Geometry Set (JS-270) consists of a triangle (which also functions as a protractor and a scale), a drawing compass, pencils, and an eraser in a storage box. Although described as a geometry set, it is essentially a drawing set. Classification as other drawing instruments under 9017.20.8090, HTS, at a rate of 5.8 percent ad valorem would be deemed applicable. The Explanatory Notes to 9017, pages 1485-86 (Harmonized Tariff Schedule of the United States - 1990), which describes drawing compasses and protractors under the heading of drawing instruments clearly states this point. The note to GRI 3(b) under examples of sets, item (3), drawing kits are also cited as an example. The Rolykit Junior Pencil Box (Model JS-100) consists of writing and drawing equipment. Again, as cited above, when referring to the Rolykit Pencil Box (Model JS-210), the "essential character" of this particular item is the writing and drawing feature which would prompt the consumer to buy the item. Classification under pencils and crayons, with leads encased in a rigid sheath under 9609.10.0000, HTS, with a duty rate of 14 cents per gross plus 4.3 percent ad valorem would be deemed applicable.

To summarize the classification of the merchandise is as follows:

1. Rolykit Pencil Box (Model JS-210) - 9609.10.0000/.14 per gross + 4.3% ad valorem; 2. Rolykit Junior Pencil Box - 9609.10000/.14 per gross + 4.3% ad valorem.

Classification of merchandise is according to the General Rules of Interpretation - Note 3(c) which states that " when goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

3. Rolykit Geometry Set - 9017.20.8090/5.8% ad valorem.

Classification is under GRI 1.
Note 4 Headquarters Rulings attached:

(1) CLA-2:CO:R:C:G: 085356 JLJ dated 11/20/89 (2) CLA-2:CO:R:C:G: 087437 JS dated 09/01/90 (3) CLA-2:CO:R:C:V: 084551 JAS dated 08/09/89 (4) CLA-2:CO:R:C:G: 085740 SER dated 03/22/90

If you require any further assistance on this matter, please call National Import Specialist James Smyth at FTS 668-5678.

Robert Slomovitz

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