CLA-2 RR:CR:GC 964597 BJB

Port Director

Port of Buffalo

c/o Chief, Residual Liquidation and Protest Branch

111 West Huron Street

Federal Building, Suite 603

Buffalo, NY 14202-2378

RE: Protest 0901-00-100224; Glencoe Mathematics Student Manipulative Kit; Math fraction strips; Geoboard; Algebra tiles.

Dear Port Director:

The following is our decision on Protest 0901-00-100224, filed against your classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of teaching aids, described as “Math Fraction Strips” and the “Glencoe Mathematics Student Manipulative Kit,” imported by Instructional Materials Group, LLC. The entries under protest were liquidated on April 28, 2000, and this protest was timely filed on July 25, 2000.

FACTS:

The merchandise at issue involves articles intended for use in schools for teaching mathematical concepts: (a) “math fraction strips,” and (2) the “Glencoe Mathematics Student Manipulative Kit.” The following list of the kit’s contents was submitted by IMG in a letter to Customs dated February 15, 2000. The kit, identified as ISBN number: 0-02-833654-2, includes: 1) protractor; 2) combination protractor/ruler; 3) measuring tape; 4) two-color counters; 5) geoboard and geobands; 6) algebra tiles; 7) equation/product mat; 8) scissors; and 9) plastic cups.

The math fraction strips consist of rectangular strips of various lengths and colors designed to demonstrate the mathematical concept of fractions. Each strip is printed with numbers of either a fraction or the whole number “1.” Even in the absence of printed identification, the concept of fractional parts of a whole is demonstrated by the relative size and colors of the various pieces, (e.g., six rectangular pieces marked “1/6” are equal in size and dimensions to the piece marked “1.”). The math fraction strips are made of ethylene plastic.

On March 29, 2000, Customs issued NY ruling F83541, in response to IMG’s February 24th, 2000 request for a tariff classification ruling. In its protest addendum, submitted July 25, 2000, IMG affirmed that the subject kit, referred to as the “Algebra and Geometry Kit” is the same merchandise referred to as the “Glencoe student manipulative kit” in NY F83541. In NY F83541, Customs determined that the kit was classifiable at GRI 3(b), under subheading 9017.80.00, HTSUS, which provides for “other” instruments for measuring length, for use in the hand.

The kit’s contents are described as teaching aids used in conjunction with Glencoe student math course textbooks. The geoboard, protractor, combination ruler-protractor are made of ethylene plastic and heat sealed into separate packets made of plastic. The algebra tiles and counters are placed in resealable plastic bags approximately 4.00” x 4.00” and 3.25” x 3.00,” respectively. Each article is described below:

The protractor is used for laying down and measuring angles in drawing and plotting. It is made of plastic, flat and semi-circle in shape, with lines and markings to measure a range from zero to 180 degrees. The protractor is heat-sealed into a clear plastic packet. It measures approximately 4 inches across its base, and 2 ¼ inches at its highest point (at 90 degrees);
The combination ruler-protractor is approximately 6 inches long and one inch wide. It is used with a pencil for inscribing circles of a set diameter on paper. It is made of plastic, with a mechanism for setting dual points placed in an open track located along the center of the ruler portion of the article. The point setting mechanism may be moved up and down the center track of the ruler portion and secured in place at any given measurement by an adjustable knob. The ruler portion measures 4 ½ inches in length, the lower edge is marked in inches, the upper edge is marked in centimeters. One end of the ruler is semi-circle shaped, with markings imprinted for measurements in degrees. The opposite end is flat with a triangular notch at its center.

The measuring tape is approximately 60 inches in length, made of white reinforced vinyl, and silk-screened with black ink on one side in metric scale, and in English units on the reverse. Metal tips are secured at each end of the tape to ensure a straight edge and accurate measurement, while preventing the ends from unraveling;

The two color counters are a set of 20 round, 1-inch in diameter, coin-shaped pieces made of styrene plastic. Each counter is two-sided, made of two pieces, one red and one yellow glued together. The counters are placed in a resealable plastic packet;

The geoboard is a 6-inch square plastic board with raised rim, made of opaque polystyrene, packaged together with a set of 25 rubber bands in two different sizes and five different colors in a heat-sealed plastic bag. The board is molded to incorporate 25 projections or “pegs” on one surface, forming a grid. Each peg is identified with a letter of the alphabet molded next to it. In addition, both the horizontal rows and the vertical columns are labeled with molded numbers from 1 to 5, to show coordinate axes. The geoboard and geobands are used by a teacher to demonstrate various geometric concepts. The teacher may place the rubber bands around the pegs to form different polygons, and to demonstrate shapes, relationships, and concepts such as area, perimeter, congruence and symmetry. The geoboard is heat-sealed in a plastic packet, approximately 7-inches x 7-inches, along with a heat-sealed packet (approximately 2 ½ -inches x 2-inches) of 25 rubber bands; and

The 32 algebra tiles are double sided, flat squares and rectangles of plastic and intended to demonstrate algebraic concepts via spatial relationships. Each tile consists of two differently colored pieces glued together and stamped either with a “minus” or “plus” symbol on a side. Even in the absence of printed identification, or regardless whether a larger or smaller number of pieces are placed in the resealable packet they are placed in, 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. They are made with styrene plastic.

Equation/product mat: 0.3mm thick, 8 ½ inch x 11 inch laminated paper sheet printed in black on each side. The “equation side is used with the algebra tiles and the “product side” is used with the two color counters;

Scissors: 5 inch nickel plated steel scissors used for cutting paper into different geometric shapes; and

Cups: 30 milliliter capacity cups used with seeds or beads (not supplied) to demonstrate the volume analog of algebraic functions.

ISSUE:

Whether the “Math Fraction Strips,” and the articles comprising the “Algebra and Geometry Kit, are classifiable as a set, 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[,]” or elsewhere, including subheading 9503.70.00, HTSUS, which provides for “toys put up in sets.”

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 (“GRI’s”), taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRIs are applied, taken in order.

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

( ( ( ( ( (

Drawing, marking-out or mathematical calculation instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof:

9017.80.00 Other instruments

( ( ( ( ( (

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:

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

( ( ( ( ( (

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).

Math Fraction Strips

Math fraction strips have been the subject of a prior New York ruling, NY C81577, issued November 28, 1997, in which Customs determined that math fraction strips, substantially identical to the subject merchandise, were classifiable at subheading 3920.10.00, HTSUS.

Protestant argues that both math fraction strips, and the kit as a set, are classifiable at heading 9023, HTSUS, or in the alternative, under subheading 9503.70.00, HTSUS.

At 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 math fraction strips, algebra tiles (with or without lettering or numbers imprinted upon them), geoboards, or counters are goods classifiable under heading 9023, HTSUS, or under 9503, HTSUS, 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.”

Math fraction strips, algebra tiles, geoboards, and color counters are used as instructional aids to teach mathematic relational numeric concepts substantially based upon counting and measuring. Although counting and measuring are fundamental to mathematics, and mathematical principles are often complex, none of these four articles, the math fraction strips, algebra tiles (with or without imprinted lettering or numbers), geoboards, or color counters, rise to the level of complexity or sophistication exhibited by the examples provided in the ENs to heading 9023. In HQ 965028, dated July 10, 2001, Customs modified and revoked tariff classification treatment of geoboards provided in NY F83529 and NY F83541, under heading 9023, HTSUS. Customs determined that geoboards are classifiable under subheading 3926.10, HTSUS, which provides for “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies[,]” and not under heading 9023, HTSUS.

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).

In this case (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.) 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. 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, or that moving colored pieces of plastic around on a table top may be used to show algebraic equations are not complicated tasks nor sophisticated procedures.

The square and rectangular math fraction strips are sold separately from the kit, in packets, containing a defined number pieces. Thus, the fraction strips could readily be purchased by teachers or parents, and used either in school, or in the home. This article, individually, is not limited in its use as a teacher’s instructional aid solely suitable for use in the classroom. It does not constitute an intricately designed model or apparatus. Further, marked or unmarked algebra tiles (square and rectangular in shape), and two-colored circular counters, if sold separately, could be used for a variety of other purposes, none of which would meet the definition of “model” or rise to the level of sophistication exhibited by the models listed in the ENs to heading 9023, HTSUS, (see HQ 965028).

In HQ 964363, dated April 2, 2001, Customs determined, inter alia, that unmarked plastic tiles 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, were classifiable under subheading 3920.10.00, HTSUS. In HQ 964363, Customs modified NY 878668, and revoked prior tariff classification treatment of plastic “color tiles,” that were similar to the subject marked algebra tiles.

The applicability of heading 3920, HTSUS, to marked or imprinted rectangular and square math fraction strips and algebra strips 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 math fraction strips and the algebra tile pieces are essentially flat and rectangular or square geometric in form and have no such indentations. Thus, conditional upon the nature of the materials used to make the math fraction strips and algebra tiles, each article separately, would be classifiable at GRI1, under heading 3920, HTSUS. The math fraction strips appear to be made from ethylene polymer, and are therefore, classifiable under subheading 3920.10, HTSUS. If made of polymers of styrene, as with the algebra tiles, they are classifiable under subheading 3920.30, HTSUS. (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 math fraction strips 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 . . ..”
In NY 878668, and its modification in HQ 964363, Customs also considered substantially similar multi-colored plastic “counters.” In NY 878668, Customs determined that, plastic “counters,” were classifiable at subheading 3926.10.00, HTSUS. In its modification of NY 878668, Customs did not modify or revoke its tariff classification treatment of the plastic counters substantially similar to the subject two-colored counters. Thus, if entered separately, and made of plastic, the counters would remain classifiable under subheading 3926.10.00, HTSUS, and not under heading 9023, HTSUS.

Glencoe Mathematics Student Manipulative Kit

Protestant argues that the kit and its contents are classifiable under heading 9023, HTSUS, or in the alternative, under subheading 9503.70, HTSUS. In NY F83541, supra., Customs determined that the kit was classifiable at GRI 3(b), under subheading 9017.80, HTSUS, the essential character of the kit being determined by the protractor, the combination ruler-protractor, and the measuring tape, all “instruments for measuring length, for use in the hand . . .[.]”

We find that the major articles composing this kit are the protractor, combination ruler-protractor, measuring tape, 20 counters, geoboard, and 32 “algebra tiles,” and are prima facie, provided for under more than one heading of the HTSUS.

In a February 15, 2000 letter to Customs, IMG stated that the subject kit and its components are “for use primarily in teacher training workshops allowing them ‘hands-on’ practice in using manipulatives for teaching middle school Algebra and Geometry concepts.” IMG further emphasized that the kit is used by students in conjunction with any of 5 different Glencoe text programs, and that “this kit has no known use other than to demonstrate mathematical concepts.”

Heading 9503, HTSUS, provides for “[o]ther toys . . . and accessories thereof,” i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term “toy” is not defined in the tariff, the EN to chapter 95 suggests that a toy is an article designed for the amusement of children or adults. The EN to heading 9503, indicates that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets, and that collections of items separately classifiable in other headings are classified in chapter 95 when put up in a form clearly indicating their use as toys. IMG’s advertising and marketing of the subject kit clearly focuses on its benefits as teaching aids. Although all of the individual articles are not specifically excluded from heading 9503 (as would coloring books and crayons), we find that the items are put up in a form to be principally used as teaching aids in conjunction with basic mathematics texts, not primarily to amuse. This fact is made clear by IMG itself, that the kit, both as a set, and by the nature of its individual components, are not intended for, and are not primarily used to provide, amusement. Thus, the kit is not classifiable under heading 9503, HTSUS.

We have determined that the subject algebra tiles and round two-color counters, are classifiable at subheadings 3920.30.00, and 3926.10.00, HTSUS, respectively (see HQ 964363, dated April 2, 2001, and NY F83529, supra., (reference: sample 3)). Rulers, compass/rulers, protractors and tape measures are prima facie classifiable under heading 9017, HTSUS, which provides for “[d]rawing, marking-out or mathematical calculation instruments (for example, drafting machines, . . . protractors, . . .); instruments for measuring length, for use in the hand” (e.g., measuring tapes). Geoboards are classifiable under heading 3926.10, HTSUS, which provides for, “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other office or school supplies[,]” (see HQ 965028). Moreover, scissors are prima facie classifiable under heading 8213, HTSUS, which provides for “[s]cissors, tailors’ shears and similar shears[.]”

Thus, the kit 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.

GRI 3 provides as follows:

When, by application of rule 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.

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

When, as in the present case, those headings each refer to only part of the materials contained in sets, they are treated as equally specific and classifiable pursuant to GRI 3(b).

EN (X) to GRI 3(b) states, that for a group of articles to qualify as a set under GRI 3(b), it 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.

The Glencoe kit is comprised of 9 articles. It is clear that two or more headings, each refer to only part of the items in the kit, and that it is put up as a set for retail sale.
As noted, the geoboard, and the 2-color counters (heading 3926); the algebra tiles (heading 3920); the measuring tape, protractor, and protractor/ruler (heading 9017), and the scissors (heading 8312), are prima facie, classifiable in different headings.

IMG advertises and markets its Glencoe Mathematics Student Manipulative Kit and contents as a set of manipulatives that specifically follow the activities provided in the Glencoe Publishing Company text entitled “Mathematics Applications and Connections” and in four other instructional volumes. Thus, we recognize that the articles are put up together to meet the particular need of training teachers and facilitating their presentation of basic mathematical concepts in algebra and geometry. 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.

In view of IMG’s literature, and representations made by IMG and its brokers, we conclude that the kit is, in fact, put up in a manner suitable for sale directly to users without repacking. We also conclude that the kit is a set at GRI 3(b), and is therefore, classifiable as if it consisted of the material or component which provides its “essential character.” Protestant argues that the essential character of the kit is determined by the “Algebra Tiles and Geoboard” (Ruling request letter February 15, 2000) or alternatively, by the “algebra tiles, counters, and the mat used in conjunction with both.” (Protest Addendum, dated July 25, 2000).

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.

Although protestant argues that geoboards are classifiable under heading 9023, HTSUS, on July 10, 2001, Customs issued HQ 965028, a final notice of modification and revocation of classification treatment previously accorded “geoboards.” In NY F83529, dated March 24, 2000, and NY F83541, dated March 29, 2000, Customs had determined that “geoboards,” of various types, were classifiable under heading 9023, HTSUS. In HQ 965028, Customs, upon further review, determined this classification was in error. Thus, Customs held, geoboards, including both the simpler one-sided model, subject of this protest, and a more intricate, two-sided model, were not classifiable under heading 9023, HTSUS. Inter alia, Customs concluded that both types of geoboard lacked the requisite sophistication reflected in the examples of instructional models provided in EN 90.23 (See HQ 965028 for further analysis). Customs held that a geoboard as an individual article is classifiable 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[.]”

A review of the subject articles shows that four of them involve measuring: the protractor, protractor-ruler, measuring tape, and the geoboard. Arguably, the counters, are also intended for use in demonstrating numeric relationships, and thus, are used to measure numeric relationships (e.g., the number of counters in one group versus those in another). We also note that no precise evidence or documentation was submitted to establish whether any particular article within the set costs, or has a value, substantially higher than the others. Further, we note that “essential character” is not determined solely on the basis of an item’s weight or the number of pieces it contains. Protractors, ruler/protractors, tape measures and geoboards all afford the ability to draw lines, angles, geometric shapes, and are all related to teaching basic mathematics.

Absent the submission of all five Glencoe Math teaching texts, mentioned by IMG as the programmatic springboards for the kit’s use, there is no evidence that the algebra tiles and geoboard, or the algebra tiles, counters, and product mat, alone or together, embody the kit’s “essential character,” more than its measuring instruments. We conclude that the kit’s “essential character” is created by the dominant number of basic measuring instruments, and the versatility afforded a purchaser by their use, to measure, draw, and diagram basic mathematical concepts.

Having established the kit’s “essential character” 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 math fraction strips are classifiable at GRI 1, 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[,]” and the “Glencoe Mathematics Student Manipulative Kit,” is classifiable at GRI 3(b) under subheading 9017.80.00, HTSUS, as: “[d]rawing, marking-out or mathematical calculation instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof: Other instruments[.]”

The protest should be DENIED. 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