CLA-2 CO:R:C:G: 084758 DPS

Jonathan M. Fee, Esq.
Grunfeld, Desiderio,
Lebowitz & Silverman
1201 West Peachtree Street, N.E.
Suite 4660
Atlanta, Georgia 30309

RE: Lithographically printed home-sewing patterns and instructions

Dear Mr. Fee:

This is in response to your letter of May 30, 1989, on behalf of Burda Patterns, Inc. (Burda), requesting a Headquarters Ruling on the classification of lithographically printed home- sewing patterns and instructions under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and enclosing a copy of your May 16, 1989 ruling request to our New York office. A sample of the subject merchandise was included with your ruling request. Further information supporting your proposed classification was submitted during a conference with Customs personnel on October 24, 1989.

FACTS:

The merchandise at issue consists of lithographically printed home-sewing patterns and instructions. It is intended to be sold to retail consumers in the non-commercial, home-sewing market.

Each article includes one or more rectangular pattern sheets. Printed on the pattern sheets are the shapes of fabric parts (i.e., patterns), plus extensive illustrations, charts symbols and general instructions. The patterns are not precut. Rather, the ultimate consumer must cut them out with a scissors from the rectangular pattern sheets. Each pattern and instruction set is packaged in a clear plastic bag which contains the pattern sheet or sheets, a single cover sheet and one or more instruction sheets. The cover sheet is visible from

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the outside of the package and contains color pictures and other printed information describing the contents. The instruction sheets contain detailed written instructions and illustrations.

The pattern and instruction sheets contain information about how much fabric is needed to complete the garment, and how to adjust the patterns to meet personal size requirements. The utilize bold face type, illustrations and warnings to guide the home-sewing consumer.

The pattern and instruction packets are made for all types of women's garments, including dresses, dress and jacket ensembles, tops, coordinated outfit, blouses, skirts, pants, pantsuits, jumpsuits, blazers, jackets, outerwear jackets and coats, folklore-like garments, evening and bridal gowns, maternity garments, jogging suits, lingerie and beachwear. They are also made for a broad range of men's and children's garments, as well as for sewn-fabric accessories (e.g., bags) and non- apparel items such as pillows and stuffed animal-type items.

Three Customs Service Notices of Action (Customs Form 29) concerning recent entries by Burda, dated March 24, 1989, March 30, 1989 and April 17, 1989, notified the importer that Customs officials at the port of Atlanta classified the subject merchandise differently than it was entered. The subject merchandise was entered under the provision for plans and drawings for architectural, engineering, industrial, commercial topographical or similar purposes, subheading 4906.00, HTSUSA. Subsequently, in the Notices of Action cited above, Customs classified the merchandise under 4823.90, HTSUSA, the provision for other paper cut to size or shape. Burda now seeks classification of the merchandise under subheading 4911.99.6000, HTSUSA, the provision for other printed matter, other, other, printed on paper by lithographic process.

ISSUE:

Whether the subject merchandise is classifiable under the provision for other paper cut to size or shape, subheading 4823.90, HTSUSA; the provision for plans and drawings for architectural, engineering, industrial, commercial or similar purposes, subheading 4906.00, HTSUSA; the provision for other printed matter, pictures, designs and photographs, other, subheading 4911.91.2040, HTSUSA; or the provision for other printed matter, other, printed on paper by lithographic process, subheading 4911.99.6000, HTSUSA.

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LAW & ANALYSIS:

The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes to not otherwise require, according to the remaining GRI's taken in order. GRI 6 requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The Rule applies in the same manner when comparing subheadings within a heading.

In a previous ruling issued by our New York office, New York Ruling Letter (NYRL) 830179, classified, under the HTSUSA, a pattern for a fabric bag, designed for use by the home seamstress or craftsman. The merchandise in NYRL 830179 consisted of one sheet of paper, lithographically printed with instructions, diagrams, cut-out markings and a reproduced photograph of some finished bags. The merchandise was classified under subheading 4911.99.6000, HTSUSA, which provides for other printed matter, printed on paper, by a lithographic process.

Here, we have similar merchandise except for the fact that the article at issue contains three distinct items in its package. It includes: (1) rectangular pattern sheets containing diagrams, dotted lines and instruction, all in green ink; (2) instruction sheets in black and white containing step by step instructions and illustrative diagrams; and (3) a cover sheet which provides a color illustration of the finished garment the pattern is intended to create. The question thus arises, whether the merchandise should be considered a set for tariff purposes. The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. The Explanatory Notes to GRI 3(b) provide further guidance in determining what constitutes a "set." The relevant note states, in pertinent part:

(X) 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 up together to meet a particular need or carry out a specific activity; and

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(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

In this case, the above "set" criteria are met. First, the subject merchandise consists of at least two different articles which are prima facie classifiable in different subheadings (ie., the illustrated color cover page in 4911.91, HTSUSA which covers other printed matter, pictures, designs and photographs and the instruction sheet which is classifiable in 4911.99, HTSUSA. Secondly, the items are put up in a manner suitable for sale directly to consumers without repacking. The third criterion, that the goods consist of articles put up together to meet a particular need or carry out a specific activity, is also satisfied. Therefore, the subject merchandise qualifies for treatment as a set.

Certain headings specifically describe goods put up in sets. Where no single heading accurately describes the set, GRI 3(b) governs classification based on the item within the set that gives it its essential character. Pursuant to GRI 3(b), sets are classified according to the component that imparts the essential character to the set.

The factor or factors which determine essential character vary with the merchandise. However, the nature of a component and its relation to the use of the goods are often factors to be considered. In this case, the large rectangular green lithographically printed sheet with pattern cut-outs, instruction, charts and various markings and warnings, guides the home-sewing user through the process of creating a garment. In addition, this sheet's size and bulk clearly exceed that of the other components. Taking into consideration all of the factors enumerated in Explanatory Note (VIII) concerning GRI (b), the essential character of the Burda sets at issue is imparted by the green pattern sheet or sheets, depending on the model.

The final issue is determining how the green pattern sheet is classified. Subheading 4906.00, HTSUSA, the provision under which the importer originally entered the subject merchandise, which covers plans and drawings for architectural, engineering, industrial, commercial or similar purposes, is limited by the Explanatory Notes to plans used by builders and engineers in industry and construction, and is therefore inapplicable. subheading 4823.90, HTSUSA, the provision under which Customs officials at the port of Atlanta classified the merchandise, covers other paper cut to size or shape. An examination of the

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Explanatory Notes thereto, indicates that Heading 4823 does not properly describe the article at issue. Although according to the Explanatory Notes, "dress pattern" fall under Heading 4823, it is Customs' view that the reference in the Explanatory Notes was intended to cover cut to shape, paperboard patterns with no or minimal printing, of the sort used in the commercial manufacturing industry. Accordingly, the subject merchandise is not classifiable under subheading 4823.90, HTSUSA.

Thus, in classifying the Burda patterns, a determination between 4911.91.2040, HTSUSA, covering other printed matter, pictures, designs and photographs, other, and 4911.99.6000, HTSUSA, which covers other printed matter, other, on paper by lithographic process, is required. Burda argues that the terms "pictures, designs and photographs," as used together in subheading 4911.91.2040 suggest that the "picture" contemplated by the tariff is one that is intended to be viewed by an observer, for enjoyment, education or other visual or mental effects or purposes. According to Burda, a pattern sheet is unlike any picture because it is meant to be manipulated as a guide for tracing or cutting.

Burda cites lexicographic authorities in defining the term "picture." The definitions it cites contemplate a visual representation of a person, thing or scene. Upon close examination of the pattern sheets, it appears that the shapes, lines and symbols on the pattern sheets are primarily instructional. The shapes on the pattern sheets depict not so much what the garment looks like, but how it must be cut, gathered, pleated or stitched. Notches show where pieces are to be joined; double dots mark the ends of openings; grain arrows show how to place the pattern on the fabric; an "X" pleats or tucks; stars indicated where fabric is to be gathered; dots indicate ese stitching; dotted lines indicate topstitching.

Based on the fact that most of the printing on the pattern sheet is instructional, to the extent that only shapes, symbols and textual material are included, we conclude that the subject pattern sheet is not classifiable under 4911.91.2040, HTSUSA, the provision for other pictures, designs and photographs, other. Rather, the pattern sheet is classifiable under the provision for other printed matter, other, printed on paper in whole or in part

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by a lithographic process, subheading 4911.99.6000, HTSUSA. Because the pattern sheets give the sets their essential character, the Burda pattern kits are classifiable under 4911.99.600, HTSUSA.

HOLDING:

The subject lithographically printed home-sewing pattern kits by Burda are classifiable in the provision for other printed matter, other, printed in whole or in part by a lithographic process, under subheading 4911.99.6000, HTSUSA. Items classified under this subheading are subject to a duty rate of 0.4 percent ad valorem.


Sincerely,

John Durant, Director
Commercial Rulings Division

andersoz library / dave wp
6cc: Area Dir. N.Y. Seaport