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HQ 958369





March 24, 1998

CLA-2 RR:CR:GC 958369 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9611.00.00

Port Director, U.S. Customs Service
33 New Montgomery St. , # 1501
San Francisco, CA 94105

RE: Protest 2809-95-100805; "Wild Guss Stamping Set"

Dear Port Director:

The following is our response to Protest 2809-95-100805, dated June 13, 1995, concerning your classification decision regarding an article identified as "Wild Guss Stamping Set" under the Harmonized Tariff Schedule of the United States (HTSUS). No sample or illustration of the subject article was forwarded to this office.

FACTS:

The subject article is identified as # 2085 and consists of 2 ink pads (one red and one blue) and 8 rubber stamps which include square stamps of a small island surrounded by water and the words "RIMBA'S ISLAND" and a question mark, and six circular stamps of various actual or mythical animal heads.

Protestant was directed to enter the stamping set under subheading 9611.00.0000 HTSUS, as "[d]ate, sealing or numbering stamps and the like (including devices for printing or embossing labels), designed for operating in the hand; hand-operated composing sticks and hand printing sets incorporating such composing sticks." Protestant asserts that the articles are classifiable under subheading 9503.70.0030, HTSUS, as "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof: other toys, put up in sets or outfits, and parts and accessories thereof: other." The entry was made in January of 1995, and liquidated in June of 1995. A protest was timely filed on June 13, 1995. The headings under consideration are as follows:

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof

9611 Date, sealing or numbering stamps and the like (including devices for printing or embossing labels), designed for operating in the hand; hand-operated composing sticks and hand printing sets incorporating such composing sticks

9612 Typewriter or similar ribbons, inked or otherwise prepared for giving impressions, whether or not on spools or in cartridges; ink pads, whether or not inked, with or without boxes

ISSUE:

Whether the "Wild Guss Stamping Set" is classifiable under the tariff provision for printing stamps, the provision for ink pads, or as a toy ?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section and 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 GRI's may then be applied.

In understanding the language of the HTSUS, the Explanatory Notes of the Harmonized Commodity Description and Coding System (ENs) may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Protestant has suggested that the subject article is not described by heading 9611, HTSUS. In support of this position, protestant cites ENs 96.11 (4). EN 96.11 states:

This heading covers date, sealing and similar stamps and composing sticks, provided they are of a type designed to be used independently in the hand. (Date, sealing and similar stamps incorporating a base for fixing on a table, desk, etc., or designed for operating on a stand are excluded - see the Explanatory Note to heading 84.72.)

These articles include:

(2) Stamps of all kinds, with or without the printing band or self-inking device; for example, date stamps, multiformula stamps, docketing and ticketing stamps, numbering stamps (self-changing or not), roller stamps, pocket stamps (usually consisting of a stamp and ink-pad in a protective case).

(4) Small hand printing sets (not being toys) consisting of a box containing a hand-operated composing or setting stick, interchangeable characters, tweezers and an ink-pad.

EN 96.11(4) describes a very specific particular type of printing set which consists of a box with a hand-operated composing stick, interchangeable characters, tweezers and ink pad. Such a device operates by a person setting, with the tweezers, various characters into the box and then placing the paper and ink in the appropriate place. The paper is then pressed with the setting stick to have the ink leave its mark. The "Wild Guss Stamping Set" does not operate in such a manner.

The ENs for heading 9611 clearly indicate that this heading covers stamps of a type designed to be used independently in the hand. EN 96.11(2) emphasizes the broad scope of the heading in by stating that stamps of all kinds, with or without a printing band or self-inking device, are within the scope of this heading.

Protestant argues that even if the stamp components of the subject article meet the description of heading 9611, HTSUS, they are nonetheless excluded from classification in heading 9611 by operation of Note 1(l) to Chapter 96, which excludes from classification in Chapter 96, "[a] articles of Chapter 95 (toys, games, sports requisites)." Therefore, if the "Wild Guss Stamping Set" is classifiable as a toy for tariff purposes, it is excluded from classification in Chapter 96.

The term "toy" is not defined in the HTSUS. However, the ENs to Chapter 95 state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Protestant has made no argument indicating which of the article's physical characteristics indicate its principal use as a toy. Furthermore, despite requests made to protestant's counsel, no information has been provided concerning the expectation of the stamp set's ultimate purchaser, the channels of trade in which it travels, its environment of sale, its use in the same manner as a toy, the economic practicality of using the stamp set as a toy or its recognition in the trade as a toy. As its principal use as a toy has not been demonstrated, it cannot be classifiable as such.

Inasmuch as the "Wild Guss Stamping Set" is not classifiable pursuant to GRI 1 as a toy set, and its individual components are classifiable in different headings, it cannot be classified by reference to GRI 1. GRI 2(b) states, in pertinent part, 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:

[w]hen 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.

Because headings 9611 and 9612 each refer to only part of the components in a possible set put up for retail sale, the headings are considered equally specific and GRI 3(b) must be applied.

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.

Explanatory Note X to GRI 3(b), indicates that for purposes of the GRI 3(b), 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 consist of components which are prima facie classifiable under more than one heading. Additionally, the components are put up together to carry out the specific activity of stamping. Finally, we note that the invoice appears to indicate that the "Wild Guss Stamping Set" was put up in a manner suitable for sale directly to users without repacking. Therefore, the "Wild Guss Stamping Set" is considered a "set" for tariff purposes. Classification of the set will be determined by its essential character.

EN VIII to GRI 3(b), states, in pertinent part, that:

[t]he 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, therefore, impart the set's essential character.

Heading 9611, HTSUS, provides for "[d]ate, sealing or numbering stamps, and the like (including devices for printing or embossing labels), designed for operating in the hand." We find that "Wild Guss Stamping Set" is correctly classified in heading 9611. This heading has no subheadings.

HOLDING:

The protest should be DENIED. The article identified as "Wild Guss Stamping Set" is properly classified under heading 9611, HTSUS, which provides for "[d]ate, sealing or numbering stamps and the like, (including devices for printing or embossinglabels), designed for operating in the hand; hand-operated composing sticks and hand printing sets incorporating such composing sticks," with a 1995 general column one rate of duty of 4.8 percent ad valorem.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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