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HQ 964363





April 2, 2001

CLA-2 RR:CR:GC 964363 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3920.10.00; 3926.10.00

Ms. Corinne Darnell
The Hipage Company
Greensboro Business Park
532 North Regional Road, Suite D, 27409
Greensboro, NC 27425

RE: Math Teaching Aids; NY 878668 Modified.

Dear Ms. Darnell:

This is in reference to NY 878668, which the Director of Customs National Commodity Specialist Division, New York, issued to The Hipage Company on October 7, 1992, in response to a letter of September 22, 1992, on behalf of U.S. Worldwide Inc. This ruling concerned the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of “’Attribute Blocks,’ ‘Base Ten Blocks,’ ‘Coins,’ ‘Color Tiles’ and ‘Counters,’” described as articles used to teach children to count, recognize shapes and name colors.

We have reviewed the decision in NY 878668 and have determined that the classification of the “Base Ten Blocks” and the “Color Tiles” are in error. This ruling modifies NY 878668 with respect to the “Base Ten Blocks” and the “Color Tiles.”

Pursuant to section 625(c)(1), Tariff Act of 1930, as amended, (19 U.S.C. 1625(c)(1)), by section 623 of Title VI, a notice was published on February 28, 2001, in the Customs Bulletin, Volume 35, Number 9, proposing to modify NY 878668, dated October 7, 1992, and to revoke the tariff treatment pertaining to the tariff classification of certain mathematical teaching aids: “Base Ten Blocks” and “Color Tiles.” No comments were received in response to this notice.

FACTS:

According to information provided with the letter of September 22, 1999, the merchandise referred to as “Base Ten Blocks,” and “Color Tiles,” are used primarily by teachers in elementary schools, to demonstrate “base ten” and metric concepts in mathematics. The Base Ten Blocks are packaged in an assortment including each of the following: (1) 30 single units (place value ones) measuring one centimeter in each dimension; (2) 20 rods (place value tens - bars) measuring one centimeter by one centimeter by ten centimeters, with slight indentations on each bar’s surface dividing each bar into ten equal one centimeter units; and (3) 2 flat, square plates (place value 100s) measuring ten centimeters by ten centimeters by one centimeter, with slight indentations on the surface dividing each plate into one hundred units. Each of the units in the place value tens and place value 100s is the size of the place value one cube unit. The “Base Ten Blocks” are all made of clear plastic for use on an overhead projector in a classroom situation. A sample of each of the components of the “Base Ten Blocks” assortment was provided. The place value 10s -bars, and the place value 100s - square plates, are both essentially flat in appearance.

The “Color Tiles” are an assortment of one-inch square tiles in ten different colors. They are all made of plastic. There are approximately 50 tiles to a package. The tiles are used both in, and out of, a classroom situation to teach a variety of mathematical concepts, including: “counting, estimation, whole number computation, fractions, patterns, geometry, [and] graphs[.]”

In NY 878668, the “Base Ten Blocks” and the “Color Tiles” were classified under subheading 3926.10.00, HTSUS, which provides for “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies.”

ISSUE:

Whether the “Base Ten Blocks” and “Color Tiles” are classifiable under subheading 3926.10.00, HTSUS, as “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies.”

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). Under General Rule of Interpretation (GRI) 1, HTSUS, goods are to be classified according to the terms of the headings and any relative section or chapter notes, provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS headings under consideration are as follows:

Other plates, sheets, film, foil and strip, of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials.

3920.10.00 Of polymers of ethylene

Other articles of plastics and articles of other materials of headings 3901 to 3914:

3926.10.00 Office or school supplies

9023 Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof .:

Note 2(r), Chapter 39, HTSUS, states that the chapter does not cover: “[a]rticles of chapter 90 (for example, optical elements, spectacle frames, drawing instruments)[.]” Therefore, if the “Base Ten Blocks” and “Color Tiles” are goods classifiable under heading 9023, they cannot be classifiable under headings 3920 or 3926, HTSUS.

The ENs to heading 9023, provide a list of eleven examples of instruments, apparatus and models designed for demonstrational purposes. All of the examples provided are complex and sophisticated articles, including “(1) [s]pecial demonstrational machines or appliances . . . , (3) [t]raining dummies, constituting an inflatable life-size model of the human body with artificial respiratory parts reproducing those of a human being, (6) [m]odels, etc., for artillery training, used in training courses held indoors, and (11) [m]ilitary tank simulators which are used for the training . . . of tank drivers.”

Base Ten Blocks” and the “Color Tiles” are used as instructional aids to teach mathematical counting concepts. Although counting is fundamental to mathematics, and mathematical principles are often complex, neither the “Base Ten Blocks” nor the “Color Tiles” rise to the level of complexity nor sophistication exhibited by the examples provided in the ENs to heading 9023. While examples of models are provided in the ENs, the term “model” is not defined in the section or chapter notes or in the ENs for heading 9023.

In the absence of a contrary legislative intent, tariff terms that are not defined in an HTSUS section or chapter note, or clearly described in an EN, are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Dictionaries, scientific authorities and other reliable lexicographic sources are often consulted; and, where the term under consideration is technical in nature, appropriate technical sources of information should be consulted. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

In this case, a typical definition of the term “model” is “a small copy or imitation of an existing object, as a ship, building, etc., made to scale;” “a preliminary representation of something, serving as the plan from which the final, usually larger, object is to be constructed;” or “a hypothetical description, often based on an analogy, used in analyzing or explaining something . . ..” (Webster’s New World Dictionary, 3rd College Ed., 1988, p. 871.) These definitions support the proposition that a “model” involves an intricate structure, or is a representation of a complex hypothetical or other difficult concept otherwise too complex to understand by mere explanation, analogy, or simple analysis. Counting in base ten with small pieces of plastic or with plastic cubes, bars or squares, is neither a complicated task nor a sophisticated procedure.

Moreover, both articles are sold in packets containing relatively small numbers of the merchandise. Thus, either article could readily be purchased by teachers or parents, and used either in school or in the home. The articles are not limited in their use as a teacher’s instructional aid solely suitable on an overhead projector in the classroom. We are of the opinion that neither the “Base Ten Blocks,” nor the “Color Tiles,” are described by heading 9023, HTSUS.

With respect to the potential applicability of heading 3920, HTSUS, Note 10, Chapter 39, states that, “[i]n headings 3920 and 3921, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).” All three components of the “Base Ten Blocks” and all of the “Color Tile” pieces are essentially flat and rectangular or square geometric in form.

The ENs to heading 3920, HTSUS, in pertinent part state, “[a]ccording to Note 10 to this Chapter, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked (for example, polished, embossed, coloured, merely curved or corrugated), uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use, for example, tablecloths). Although indentations appear on two components of the “Base Ten Blocks,” on the place value 10s -bars and on the place value 100s – squares, these superficial markings do not constitute “further working,” and therefore do not change their nature. The indentations are formed during the molding process and not after the formation of the plate. Thus, even though “[p]lates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square) are generally classified as articles of headings 39.18, 39.19 or 39.22 to 39.26[,]” (EN 39.20, p. 619), these components are not “further worked” and retain their essentially flat shape and are thus, classifiable under heading 3920, HTSUS. On the condition that the articles are made of an ethylene polymer, they are provided for under subheading 3920.10, HTSUS, which covers “[o]ther plates, sheets, film, foil and strip, of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials. Of polymers of ethylene[.]” See NY C81577 dated November 28, 1997, and NY F83529 dated March 24, 2000, for similar rulings.

The ENs to heading 3926, HTSUS, emphasize in pertinent part, that heading 3926 only covers “articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter [39]) or of other materials of headings 39.01 to 39.14.” Because the “Base Ten Blocks” and the “Color Tiles” are provided for under heading 3920, HTSUS, they are therefore excluded from consideration under the more general “basket provision” of heading 3926, HTSUS, as “[o]ther articles of plastics . . ..”

In NY 878668, the “Base Ten Blocks” and the “Color Tiles” were held to be classifiable under subheading 3926.10.00, HTSUS, based upon the understanding that they were articles made of plastic and used as a school supply. However, at GRI 1, only once a determination is reached as to which HTSUS heading covers these articles would further reference be made to the 6-digit subheading level.

HOLDING:

At GRI 1, the “Base Ten Blocks” and “Color Tiles” are classifiable under subheading 3920.10.00, HTSUS, which provides for “[o]ther plates, sheets, film, foil and strip, of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials. Of polymers of ethylene[.]”

EFFECT ON OTHER RULINGS:

NY 878668, dated October 7, 1992, is hereby MODIFIED with respect to the “Base Ten Blocks” and the “Color Tiles,” as set forth herein. In accordance
with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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