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HQ 964596




August 2, 2001

CLA-2 RR:CR:GC 964596 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3920.10.00, 3926.10.00, 9503.60.20

Port Director of Customs
111 West Huron Street
Suite 603
Buffalo, NY 14202-2378

RE: Protest 0901-00-100225; Teaching aids (Place value one cubes; Unmarked algebra tiles; Two-color counters; Tangrams; and Polygon set).

Dear Port Director:

The following is our decision on Protest 0901-00-100225, filed against your classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of teaching aids, described as place value one cubes, algebra tiles, two-color counters, tangrams, and a set of plastic polygon shapes imported by Instructional Materials Group, LLC. The entries under protest were liquidated on April 28, 2000, and this protest was timely filed on July 26, 2000.

FACTS:

The merchandise at issue involves articles intended for use in schools for teaching mathematical concepts: (1) place value one cubes; (2) two-color counters, (3) algebra tiles, (4) tangrams, and (5) a set of plastic polygon shapes.

Place value ones, IMG item # 002-109762-3, are made of opaque, colored plastic, packaged in a resealable plastic bag. Each cube measures one centimeter in each dimension. There are 200 cubes in each packet.

Algebra tiles are double-sided, flat squares and rectangles of opaque plastic and intended to demonstrate algebraic concepts via spatial relationships. They are made of styrene plastic. Each tile consists of two differently colored pieces glued together. No symbols are stamped on either side. Even in the absence of printed identification, or
regardless of the inclusion of a greater number of tiles, algebraic or fractional concepts may be demonstrated by using the relative size, shape or color of the various pieces. There are three sizes: 2-inch squares, 2-inch x 3/8-inch strips, and smaller 3/8-inch squares;

Two-color counters, IMG item # 002-109738-0, are a set of 200 round, 1-inch in diameter, coin-shaped pieces, made of styrene plastic. Each counter is two-sided, made of two flat pieces, one red, and one yellow, glued together. The counters are placed in a resealable plastic packet.

Tangrams, IMG item # 002-109765-8, are sets of 7 plastic geometric shapes. Each tangram consists of five triangles, a square, and a rhomboid. All of the shapes of a particular tangram are the same color, and packaged in a recloseable plastic bag;

Polygon set, IMG item # 4020, is an assortment of 273 flat, translucent-plastic geometric shapes placed in a transparent zippered, vinyl bag. The set includes packets of shapes, including, squares, rectangles, triangles, parallelograms, hexagons, and trapezoids of varying sizes and colors. There are 15 packets of geometric shapes in all. Each packet of shapes is individually wrapped in plastic and contains a differing number of pieces (between 14 and 27). All 15 packets are packaged together for retail sale in the transparent, zippered vinyl bag. The geometric shapes are flat, and made of thin polystyrene plastic. Twelve packets (216 pieces), contain shapes other than squares or rectangles. There are two packets of squares and one packet of rectangles (57 pieces). The vinyl zippered bag is made of PVC sheeting 0.20 mils thick, and measures approximately 11.5 inches by 7.5 inches.

ISSUE:

Whether the subject articles are classifiable as “educational toys,” under subheading 9503.70.00, HTSUS, which provides for “toys put up in sets,” as demonstrational models under heading 9023, HTSUS, or elsewhere?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after, but not before the notice of liquidation; see 19 U.S.C. §1514 (c)(3)(A)), and the matter is protestable (see 19 U.S.C. §1514(a)(2) and (5)).

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, and 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 provisions 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.

Of polymers of ethylene

3920.30.00 Of polymers of styrene

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 .:

Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

Puzzles and parts and accessories thereof: Other.

Other toys, put up in sets or outfits, and parts and accessories thereof[.]

Protestant argues that the place value one cubes, algebra tiles, two-color counters, tangrams, and polygons are classifiable at heading 9023, HTSUS, as demonstrational models, or in the alternative, under subheading 9503.70.00, HTSUS, as other toys.

Chapter 39, HTSUS, Note 2(r), provides that the chapter does not cover: “[a]rticles of chapter 90 (for example, optical elements, spectacle frames, drawing instruments)[.]” Therefore, if the place one value cubes, algebra tiles (with or without lettering or numbers imprinted upon them, (see HQ 964597, dated July 19, 2001), two-color counters, tangrams, and polygons are goods classifiable under heading 9023, HTSUS, or under 9503, HTSUS, they cannot be classifiable under headings 3920 or 3926, HTSUS, (see also HQ 963851, dated April 12, 2001; HQ 964363, dated April 2, 2001).

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.”

While examples of models are provided in EN 90.23, the term “model” is not defined in the section or chapter notes or in the ENs for that heading. 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).

With respect to heading 9023, 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.) Customs has held in HQ 964597, dated July 19, 2001; HQ 965028, dated July 10, 2001; HQ 963851, dated April 12, 2001; and HQ 964363, dated April 2, 2001, that 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.

Place value one cubes, Algebra tiles, and Two-color counters

In HQ 964363, supra., Customs determined that “place value one cubes,” similar to the subject place value one cubes, are classifiable under subheading 3920.10.00, HTSUS, and not under subheading 3926.10.00, HTSUS. In HQ 964597, supra., Customs ruled that algebra tiles, made of styrene plastic, are classifiable under subheading 3920.30.00, HTSUS, and counters are classifiable under subheading 3926.10.00, HTSUS. Although in HQ 964363, Customs did modify its classification treatment of place value one cubes and unmarked color tiles, (originally held in NY 878668, dated October 7, 1992, classifiable under subheading 3926.10.00, HTSUS), Customs did not alter its classification of “counters.” The counters, also the subject of NY 878668, remained classifiable under subheading 3926.10.00, HTSUS. This finding has recently been affirmed in HQs 963851 and 964597 supra. We find no error in, or reason to reverse, these decisions

Further, in HQ 964363, Customs held that unmarked plastic tiles, both in and out of a classroom situation, although used to teach a variety of mathematical concepts, including counting, estimation, whole number computation, fractions, patterns, geometry and graphs, were nonetheless classifiable under subheading 3920.10.00, HTSUS, (if made of polyethylene plastic), and not provided for under heading 9023, HTSUS, or under subheading 3926.10.00, HTSUS. Even an apparent variance in the number of square or rectangular algebra tiles placed in a particular packet (from 32 to 50), is not a sufficient basis upon which to alter their classification.

Place value one cubes, algebra tiles, two-color counters, tangrams, and polygons are sold by IMG for use as instructional aids to teach mathematical numeric and geometric concepts. However, teaching that a square of plastic may be cut up into smaller parts called fractions, that counting may be shown with small multi-colored, circular or rectangular pieces of plastic, that moving colored pieces of plastic around on a table top may be used to show algebraic equations, or that polygons represent basic geometric shapes, are not complicated tasks nor sophisticated procedures. Further, although such numeric and dimensional relationships are fundamental to mathematics and geometry, and these mathematical principles are often complex, none of these articles, rise to the level of complexity or sophistication exhibited by the examples provided in the ENs to heading 9023.

As discussed in HQ 964597, supra., the applicability of heading 3920, HTSUS, to marked or imprinted rectangular and square algebra tiles, or place value one cubes, is supported by Note 10, Chapter 39, which provides, “[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).” The cubes and the essentially flat algebra tile pieces are geometrically rectangular or square in form, and have no such indentations. Thus, conditional upon the nature of the materials used to make the cubes and algebra tiles, each article separately, would be classifiable at GRI1, under heading 3920, HTSUS. The cubes appear to be made from ethylene polymer, and are therefore, classifiable under subheading 3920.10, HTSUS. If they are made of polymers of styrene, as in the case of the algebra tiles, they are classifiable under subheading 3920.30, HTSUS. (See also NY C81577 dated November 28, 1997, and NY F83529, dated March 24, 2000.)

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 place value one cubes and algebra tiles (with or without imprinted lettering or numbers) 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 . . ..”

II. Tangrams

In NY D88059, dated March 5, 1999, and NY D86727, dated February 9, 1999, Customs has previously determined that articles referred to as tangrams, and similar to the subject merchandise, were classifiable at GRI 1, under subheading 9503.60.20, HTSUS, as “[o]ther toys; . . . puzzles of all kinds; parts and accessories thereof: Puzzles and parts and accessories thereof: Other[.]” At liquidation, you determined the subject tangrams were classifiable under subheading 3926.10.00, HTSUS. Protestant argues that the subject tangrams are classifiable under subheading 9503.70.00, HTSUS, which provides for “[o]ther toys, put up in sets or outfits. . . and parts and accessories thereof.[]”

If the subject tangrams are classifiable under heading 9503, HTSUS, they cannot be classifiable under headings 3920 or 3926, HTSUS, per chapter 39, Note 2(r), HTSUS, supra. The language of heading 9503, HTSUS, is both specific and broad in its construction where it provides for “puzzles of all kinds.” However, while both heading 9503, and EN 95.03(C), state that the heading provides for “puzzles of all kinds,” the term “puzzles” remains undefined. As noted in our discussion of heading 9023, HTSUS, and its term “model,” tariff terms that are not defined 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). Again, 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).

A tangram is a widely known, and commonly used, puzzle. Tangrams are defined in Merriam-Webster’s Collegiate Dictionary as, “a Chinese puzzle made by cutting a square of thin material into five triangles, a square, and a rhomboid which are capable of being recombined in many different figures” (Merriam-Webster’s Collegiate Dictionary, 10th Ed., 1999, p. 1204). Each of protestant’s sample tangrams contains the requisite number and type of flat geometric shapes required, and we conclude that the article qualifies as a tangram puzzle. Subheading 9503.70, HTSUS, provides for, “[o]ther toys, put up in sets or outfits.” In pertinent part, EN subheading 9503.70, states 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 repackaging.” These tangrams are completely and specifically described as puzzles, and not as “other toys put up in sets or outfits.” Accordingly, the subject tangrams are classifiable under subheading 9503.60.20, HTSUS.

III. Polygons

IMG sells this set of plastic polygon shapes for use by teachers teaching basic geometric shapes. These polygons are used in conjunction with a series of affiliated elementary mathematics textbooks. In NY F83529, dated March 24, 2000, Customs determined that flat plastic polygon shapes, of various colors, sizes, and shapes, other than squares and rectangles, were classifiable under subheading 3926.10.00, HTSUS. Customs also determined that rectangular and square flat plastic shapes of various colors and sizes, made of styrene, were classifiable under subheading 3920.30.00, HTSUS. The subject merchandise includes 15 packets of flat plastic geometric shapes placed in a polyvinyl bag. It appears that this set of plastic polygons cannot be classified on the basis of GRI 1.

In the event that 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 may then be applied. When, by application of GRI 2(b), or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, 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.

(b) Mixtures, 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.

In this instance, headings 3920 and 3926, HTSUS, each refer to only part of the materials contained in the polygon set. Thus, they are treated as equally specific and classifiable pursuant to GRI 3(b).

To qualify as a set under GRI 3(b), EN (X) to GRI 3(b) states, that a group of articles must meet three requirements:

Consist of at least two different articles which are, prima facie, classifiable in different headings;

Consist of products or articles put up together to meet a particular need or carry out a specific activity; and

Be put up in a manner suitable for sale directly to users without repacking.

Prima facie, the set of polygons meets all three of the above requirements: 1) three different articles of the set are classifiable under different headings of the HTSUS: headings 3920, 3926, and 4202; 2) the articles are put up to meet a particular need or carry out a specific activity: to teach about primary geometric shapes. In HQ 965028, and HQ 964597, supra., Customs noted that IMG had demonstrated its intention to use manipulatives as teaching aids through its coordinated advertising and sales efforts used in conjunction with a comprehensive series of elementary mathematics textbooks; and 3) the articles are put up together for retail sale: placed in 15 individually wrapped packets and stored in a zippered polyvinyl bag. We also note, that not every simple plastic teaching aid constitutes a “model” or “apparatus” reflective of the complexity or sophistication provided for in heading 9023, HTSUS. Likewise, an article may well be suitable for alternative uses, and yet, still not constitute a toy (See HQs 965028, dated July 10, 2001, and 964597, supra.).

EN VIII to GRI 3(b) provides 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 essential character of this polygon set is determined by the 12 packets of the “other” geometric shapes made of flat plastic. The 12 packets of flat plastic non-square and non-rectangular shapes, comprise 216 pieces of the set (versus 57 square and rectangular pieces), and establish its essential character. These 12 packets are provided for under heading 3926, HTSUS. Only the remaining 3 packets of shapes, squares and rectangles, are provided for under heading 3920, HTSUS.

We conclude that the polygons, packaged and stored in a polyvinyl bag, constitute a set at GRI 3(b), its “essential character” determined by the bulk, quantity, weight, value of the flat plastic non-square and non-rectangular shapes, provided for under heading 3926, HTSUS, as “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies[.]”

Having established the “essential character” of this polygon set at GRI 3(b), we have no need to look to GRI 3(c) to classify the goods “under the heading which occurs last in numerical order among those which equally merit consideration.”

HOLDING:

The place value one cubes, algebra tiles, two-colored counters, and tangrams are all classifiable at GRI 1. Accordingly, place value one cubes are classifiable under subheading 3920.10.00, HTSUS, as: “[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[.]”

The algebra tiles are classifiable under subheading 3920.30.00, HTSUS, as: “[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 styrene[.]”

The two-colored counters 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[.]”

The tangrams are classifiable under subheading 9503.60.20, HTSUS, as: “[o]ther toys; . . . puzzles of all kinds; parts and accessories thereof: Puzzles and parts and accessories thereof: Other[.]”

The set of multi-colored, multi-sized, polygons packaged in a polyvinyl zippered bag are classifiable at GRI 3(b), as a set, 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[.]”

The protest should be DENIED IN PART, AND ALLOWED IN PART. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom on Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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