CLA-2 RR:TC:TE 960420 GGD

Ms. Sally Berghauser
Paper Magic Group
401 Adams Avenue
Scranton, Pennsylvania 18510

RE: "Color-Me Pals;" GRI 3 Set

Dear Ms. Berghauser:

This letter is in response to your request of March 6, 1997, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an article identified as "Color-Me Pals," made in China. A sample was submitted with your inquiry.

FACTS:

The sample article, identified by item no. 612197-024, consists of six washable marking pens and three stuffed textile items - two of which resemble decorative eggs and one of which resembles a child's book (but without pages). The textile items are printed with design outlines that are intended to be filled in with colored markers by children for their amusement. The "book," entitled "Bunny Tales," has a hook and loop fabric fastener which, when opened, reveals additional designs on the inside covers. The components are imported in a retail package, suitable for direct sale without repacking.

ISSUE:

Whether the multiple-component article is classified as a set and, if so, which component(s) impart(s) the set's essential character. -2-

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the 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. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Although the complete article consists of components that, individually, are classifiable in different headings (i.e., the marking pens in heading 9608 and the stuffed textile items in 6307 and, conceivably, 9503), we first look to heading 9503, HTSUS, to determine whether the collection of components may be classified in that heading, by reference only to GRI 1.

Heading 9503, HTSUS, provides for "Other 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 indicate that a toy is an article designed for the amusement of children or adults. It has been Customs position that the "amusement" requirement means that a toy should be designed and used principally for amusement. The EN to heading 9503 suggest that:

Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).

At least one of the individual components that comprise the "Color-Me Pals" article would, if presented separately, be classified in a heading other than 9503. The marking pens are classifiable in heading 9608, HTSUS, which covers (among other goods) "felt tipped and other porous-tipped pens and markers...."

Whether the stuffed textile components, if presented separately, would be classified in a heading other than 9503, HTSUS, is dependent upon whether they are principally designed -3-

for amusement. Their play value standing alone (without the colored markers) is quite limited. The items are not plush in texture, they hold no sound or light-related device, the book contains no pages, etc. The fact that the textile items are washable, printed with designs, and put up with washable markers indicates that they are principally designed to be colored, not to amuse.

Heading 6307, HTSUS, covers other made up textile articles, including dress patterns. Note 1(t) to Section XI (the section in which chapter 63 falls) states that "[t]his section does not cover: Articles of chapter 95 (for example, toys, games, sports requisites and nets)." The EN to heading 6307 indicate that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. We find that the stuffed textile components are classifiable in heading 6307, HTSUS.

Despite the fact that both drawing and coloring are activities capable of providing amusement, not all merchandise that amuses is properly classified in a toy provision. We note that the EN exclude from heading 9503, certain articles that are used to draw and color, when those items are individually presented. The EN state, in part, that heading 9503 excludes:

"(c) Children's picture, drawing or colouring books of heading 49.03....(h) Crayons and pastels for children's use, of heading 96.09....(ij) Slates and blackboards, of heading 96.10."

Although none of the "Color-Me Pals" components is classifiable in the excluded headings above, the EN provide an indication that the collection of colored markers and textile items is not put up in a form that suggests intended use as a toy. We find that, like its individual components, the complete article is not principally designed to amuse, but to provide a means to draw and color. It is therefore not classifiable pursuant to GRI 1 in heading 9503, HTSUS.

In pertinent part, GRI 2(b) states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings (in this case, 6307 and 9608) are regarded as equally specific when each refers to part only of the items in a set put up for retail sale. Therefore, to -4-

determine whether the article might be classified under one provision, we look to GRI 3(b), which states in pertinent part that:

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.

With respect to whether the "Color-Me Pals" article constitutes goods put up in a set, we look to Explanatory Note X to GRI 3(b), which indicates that for purposes of the rule, the term "goods put up in sets for retail sale" means 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

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

As previously noted, the subject goods meet criteria (a) and (c). With regard to criterion (b), it has also been determined that the items are put up together to carry out the specific activity of drawing and/or coloring stuffed textile objects with markers. We find that the articles accomplish a specific activity and thus comprise a set.

In order to determine the essential character of the set, we next view Explanatory Note VIII to GRI 3(b), which provides the following guidance:

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 markers and the objects they mark each play important roles in the set. What distinguishes the two types of components is the fact that, although the textile components are washable -5-

and reusable, the markers are useless once their limited supply of marking fluid has been dispensed. On that basis, we find that the stuffed textile components provide the set with its essential character. The "Color-Me Pals" set is properly classified in heading 6307, HTSUS. The correct subheading is 6307.90.9989, HTSUSA.

HOLDING:

The "Color-Me Pals" set, identified by item no. 612197-024, is properly classified in subheading 6307.90.9989, HTSUSA, the provision for "Other made up [textile] articles, including dress patterns: Other: Other: Other, Other: Other." The general column one duty rate is 7 percent ad valorem.


Sincerely,

John Durant, Director
Tariff Classification
Appeals Division