CLA-2 CO:R:C:G 085356 JLJ

Kenneth R. Paley
Sharretts, Paley, Carter & Blauveldt
1707 L Street, N.W.
Washington, D.C. 20036

RE: School supply kits

Dear Mr. Paley:

You requested classifications under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) on behalf of your client, K-Mart Corporation, for three school supply kits. You submitted samples of each along with your request.

FACTS:

The first sample, Model 25-39-10, consists of one black lead pencil, one ruler, one eraser and one pencil sharpener packaged in a blue sheet plastic pouch which is closed by a zipper.

The second sample, Model 25-40-60, consists of one ball point pen, one pencil sharpener, one eraser, one pencil, one ruler and a grey and white sheet plastic pouch which is closed by a snap at the top. All the items are packaged in a cellophane package.

The third sample, Model 25-37-05, consists of one ruler, one pencil, one eraser, one sharpener and a green sheet plastic pouch printed with skateboard scenes which is closed by a zipper. All items are packaged in a clear sheet plastic bag.

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ISSUE:

What is the correct classification for these school supply kits?

LAW AND ANALYSIS:

You suggest that these three kits are classified under the provision for drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators): other drawing, marking-out or mathematical calculating instruments: other, in subheading 9017.20.80, HTSUSA. Alternatively, you suggest that the kits are classified under the provision for pencils and crayons, with leads encased in a rigid sheath, in subheading 9609.10.00, HTSUSA, by virtue of GRI 3(c) because the kits comprise sets for retail sale in which no item comprises the essential character.

The Explanatory Notes for Heading 9017 state as follows:

This heading includes drawing, marking-out or mathematical calculating instruments....

These include:

(A) Drawing instruments.

(1) Pantographs and eidographs....

(2) Drafting machines....

(3) Drawing compasses....

(4) Set squares....

(5) Protractors....

(6) Stencils....

It is obvious from the enumeration of items above that Heading 9017 is not intended to cover school supply kits such as the instant merchandise. Rather, as made clear by the above- cited Notes, the drawing sets covered by Heading 9017 are more technical ones such as mechanical drawing sets or engineering drawing sets.

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Your alternative classification under subheading 9609.10.00, HTSUSA, is more on point.

General Rule of Interpretation (GRI) 3(a), HTSUSA, states that the most specific heading shall apply, but that when two or more headings refer to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific. GRI 3(a) does not apply to the instant kits.

GRI 3(b), HTSUSA, states that goods put up in sets for retail sale shall be classified according to that component which gives them their essential character.

The Explanatory Notes for GRI 3(b) state that goods put up in sets for retail sale must consist of at least two different articles which are classifiable in different headings. Each kit contains a pencil classified in Heading 9609 and an eraser classified in Heading 4016, so this requirement is met. The Explanatory Notes also state that retail sets must consist of articles put up together to carry out a particular function. All of the items involved would help a student do school writing, so the second requirement is met. Finally the Explanatory Notes state that retail sets must be put up in a manner suitable for sale directly to users without repacking. The instant kits meet this final requirement, so they do constitute goods put up in sets for retail sale.

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.

In the case of the instant school supply kits, no one particular component stands out. No single component is of such distinctive bulk, nature, quantity, weight or value as to give the kit its essential character. Nor does any component play such a role in relation to the use of the goods as to be determinative of essential character. Inasmuch as no essential character can be determined, GRI 3(b) does not apply.

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GRI 3(c) says that, if neither GRI 3(a) nor GRI 3(b) applies, merchandise shall be classified in the heading which occurs last in numerical order among those equally meriting consideration. All items within the kits appear to merit equal consideration. If entered separately, the plastic pouches are classifiable in Heading 4202, the pencils are classifiable in Heading 9609, the rulers are classifiable in Heading 9017, the pencil sharpeners are classifiable in Heading 8214, the erasers are classifiable in Heading 4016, and the ball point pen is classifiable in Heading 9608. By virtue of GRI 3(c), all three school supply kits are classifiable in Heading 9609, which occurs last in numerical order.

We note that Customs Headquarters Ruling Letter (HRL) 084715 of August 24, 1989, classified a similar kit in subheading 3923.10.000, HTSUSA, because it found that the rigid plastic box which enclosed the other items constituted the essential character of the kit. The merchandise in HRL 084715 is distinguishable from the three kits at issue here because the merchandise differs. The rigid plastic box in HRL 084715 constituted one third of the value of the kit, more than twice that of the next most expensive component. The bulk of the box exceeded all other components. Most of the components fit within the rigid plastic box. In the instant kits, all of the components fit within the plastic pouches, but the value of the plastic pouches does not rival the value of the rigid plastic box at issue in HRL 084715. Nor do the plastic pouches at issue here have the bulk of the box at issue in HRL 084715. Instead all three pouches are flimsy, inexpensive pouches of flexible plastic sheeting. HRL 084715 is distinguishable because it covered a different type of merchandise.

HOLDING:

The three school supply kits are goods put up in sets for retail sale. They are classified in subheading 9609.10.00, HTSUSA, by virtue of GRI 3(c), HTSUSA, and are dutiable at the rate of 4.3. percent ad valorem plus 14 cents per gross.

Sincerely,

John Durant, Director
Commercial Rulings Division

jones library 085356JLJ
6 cc: Area Dir., N.Y. Seaport (NIS-113-157)
JLJohnson:peh:9/29/89