#  HQ 962971

September 11, 2000

CLA-2 RR:CR:GC 962971 AML

**CATEGORY:** Classification

**TARIFF NOS.:** 4202.92.45, 4901.99.00, 4905.99.00, 4911.99.60,
8513.10.20,

9005.10.00, 9014.10.90, 9208.90.00, 9608.20.00, 9503.70.00

Mr. Bruce N. Shulman

Stein, Shostak, Shostak & O'Hara, P.C.

Suite 807

1620 L Street, N.W.

Washington, D.C. 20036-5605

**Re:** Reconsideration of NY E82029; Stargazer and Pathfinder; Fact
Packs.

Dear Mr. Shulman:

This is in reference to your letter of July 13, 1999, on behalf of
Walter Foster Publishing, Inc., requesting reconsideration of New York
Ruling Letter (NY) E82029, dated June 23, 1999, which classified each
item contained in the "The Stargazer Fact Pack" ("Stargazer") and in
"The Pathfinder Fact Pack" ("Pathfinder") individually under the
Harmonized Tariff Schedule of the United States (HTSUS). We have
reconsidered NY E82029 and now believe that the classification set forth
concerning the Stargazer Fact Pack is incorrect. Pursuant to section
625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by
section 623 of Title VI (Customs Modernization) of the North American
Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat.
2057), a notice was published on July 26, 2000, in Vol. 34, No. 30 of
the Customs Bulletin, proposing to modify NY 82029 and to revoke the
treatment pertaining to the Stargazer Fact Pack. We regret that the
notice inadvertently omitted language regarding the Pathfinder. We
believe that the classification set forth in NY E82029 concerning the
Pathfinder Fact Pack is correct. Several comments were received in
response to this notice. In preparing this ruling, consideration was
given to your letter of August 3, 2000.

**FACTS:**

The Stargazer Fact pack is made up of the following items:

1\. A 32 page, paperbound booklet ("A First Guide to the Stars") printed
with

> illustrations and text which introduces a child to astronomy and
> includes references to other articles contained in the pack.
>
> 2\. A 16 page "Stargazer Activity Book" printed with text and diagrams
> providing text and diagrams for observing the night sky.

3\. A printed map of the moon.

> 4\. A packet of "Star System Stick-ons" which are small, luminescent,
> plastic
>
> shapes molded in the form of planets, stars, comets and the like.
> Included are small adhesive disks intended to be used to affix the
> plastic shapes to surfaces.
>
> 5\. A "planisphere," which is a map of the constellations printed on a
> paperboard
>
> disk with a rotating plastic overlay.

6\. One small plastic telescope.

7\. One brightly colored plastic flashlight.

8\. One felt-tipped pen.

> 9\. A child-sized clear polyvinyl chloride (PVC) backpack which serves
> as the
>
> retail package for the assortment of items.

The Pathfinder Fact Pack is made up of the following items:

1\. A 32 page, paperbound booklet ("A First Guide to Mapping") printed
with

> illustrations and text which introduces a child to mapping and
> includes references to other articles contained in the pack.
>
> 2\. A 16 page "Pathfinder Activity Book" printed with text and
> diagrams providing text, diagrams and activities for introducing the
> use of and the creating maps.

3\. A printed map of the world with a "treasure map" printed on the
reverse side.

> 4\. Two sheets of stickers to be used with the world and treasure maps
> for
>
> labeling countries and continents and to create the treasure map.
>
> 5\. One small pair of plastic binoculars.

6\. One plastic whistle with attached loop of cord.

7\. One brightly colored plastic flashlight.

8\. One felt-tipped pen.

9\. One plastic compass.

> 10\. A child-sized clear polyvinyl chloride (PVC) backpack which
> serves as the retail package for the assortment of items.

**ISSUE:**

Whether the "Stargazer Fact Pack" and "Pathfinder Fact Pack" are
classifiable as toys put up in sets or outfits, as sets put up for
retail sale, or according to the classification of each of their
respective components?

**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 (ENs) 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 GRIs.

Heading 9503 covers other toys. Although the term \"toy,\" in general,
is not specifically defined in the tariff, the ENs to Chapter 95, HTSUS,
indicate that \"this Chapter covers toys of all kinds whether designed
for the amusement of children or adults.\" It has been Customs position
that the amusement requirement means that toys should be designed and
used principally for amusement. See Additional U.S. Rule of
Interpretation 1(a), HTSUS.

The ENs for heading 95.03 provide, in pertinent part, that:

This heading covers:

\(A\) \[a\]ll toys not included in headings 95.01 and 95.02.

\* \* \*

\[t\]hese include:

\* \* \*

> \(17\) \[e\]ducational toys (*e.g*., toy chemistry, printing, sewing
> and knitting sets).

\* \* \*

> \[c\]ertain toys (*e.g*., electric irons, sewing machines, musical
> instruments, etc.) may be capable of a limited \"use\"; but they are
> generally distinguishable by their size and limited capacity from real
> sewing machines, etc.
>
> \[c\]ollections 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).
>
> \[c\]ertain of the above articles (toy arms, tools, gardening sets,
> tin soldiers, etc.) are often put up in sets.

The EN to subheading 9503.70, provides, in pertinent part, that:

> Subject to substantiated classification in heading 95.03 and for the
> purpose of this subheading:
>
> \(i\) "Sets" are two or more different types of articles (principally
> for amusement), put up in the same packing for retail sale without
> repacking. Simple accessories or objects of minor importance intended
> to facilitate the use of the articles may also be included.
>
> \(ii\) "Outfits" are two or more different articles put up in the same
> packing for retail sale without repacking, specific to a particular
> type of recreation, work, person or profession.

If these goods can be shown to be designed principally for the amusement
of children or adults, they may qualify as a set of heading 9503, HTSUS.
Upon examination of the individual articles contained in the Stargazer
collection, only one is a toy in its own right. The plastic, hand-held
telescope is a toy; its principal use, though "capable of a limited
'use,'" is similar to that of an actual telescope. The telescopes "are .
. . distinguishable by their size and limited capacity from real"
telescopes and can be understood to be for looking at celestial bodies
(more aptly, imitating that pursuit) as the instruction book indicates
(see the EN above). We note that the EN references to collections of
articles and outfits allow collections such as these to be classified as
toys, *i.e.*, "two or more different articles put up in the same packing
for retail sale without repacking, specific to a particular type of
recreation, work, person or

profession." See the EN to subheading 9503.70, *supra*.

Upon examination of the articles in the Pathfinder collection, only one
is a toy in its own right. The plastic, hand-held binoculars are a toy;
their principal use, though "capable of a limited 'use,'" is similar to
that of actual binoculars. The binoculars "are\... distinguishable by
their size and limited capacity from real" binoculars and can be
understood to be for looking at objects, persons and scenery (more
aptly, imitating that pursuit) as the instruction book indicates (see
the EN above).

In the tariff context, "amuse" is mainly used in contrast to some
utilitarian or functional quality and the focus is not how the toys are
used, but whether they are **designed** to amuse. An examination of the
Stargazer Fact Pack and the Pathfinder Fact Pack shows that neither is
designed to amuse, but rather both are designed to facilitate some kind
of educational activity.

In the most recent ruling cited in support of the claim of
classification as "\[t\]oys, put up in sets or outfits" in subheading
9503.70, HTSUS, the quoted portion speaks to the point that some
components may be used independently of the rest in a subheading 9503.70
set without disqualifying the classification. However, integral to that
concept is that the articles "typically" are used together to **provide
amusement** but also that "\[i\]t is sufficient that the components of
the toy set possess **a clear nexus** which contemplates a **use
together** to amuse." HQ 959232, issued June 2, 1998 (emphasis added).
Of the articles under consideration here, all articles in the Stargazer
function as astronomy guides and implements, that is, the disparate
objects are used conjunctively to amuse while guiding the user through
the steps of elementary astronomy. The nexus between the articles
contained in the Stargazer is that of a child amusing himself by
emulating the adult activity of studying the stars and learning
fundamental facts about astronomy.

In the case of the Stargazer, the backpack serves to store and transport
the articles, thereby aiding in stargazing on site. It is this nexus and
function -- that of storing the disparate articles and enabling the user
to transport the outfit (Fact Pack) to any desired vantagepoint to
observe the stars -- that makes the backpack part of the set or outfit
in this particular instance.

Contrariwise, there is no clear nexus among the articles contained in
the Pathfinder. As you note in your August 3, 2000, letter, the
Pathfinder is an "educational toy" designed to teach exploration,
mapping and geography. While it can be suggested that the intended
function of the disparate group of articles is that of providing
amusement for children who emulate the adult activities of exploring,
map reading and orienteering (and learning fundamental facts about these
skills), we find that the disparate articles in the Pathfinder lend
themselves to disparate pursuits. That is, as compared to the Stargazer,
which provides disparate articles intended to be used for a

single pursuit -- astronomy -- the Pathfinder's disparate articles, when
used in tandem with the activity book, are used for several similar
pursuits (either map reading, map making, orienteering), rather than a
single, defined purpose. The rendition and recitation of the history and
derivation of the different types of maps offer no amusement at all. We
find that the articles contained in the Pathfinder do not "possess a
clear nexus which contemplates a use together to amuse." Therefore, with
regard to the Pathfinder, we affirm the determination made in NY E82029.

The Stargazer is a collection of booklets and materials intended to
provide an elementary introduction to astronomy. The goods in the
Stargazer are put up together to make the goods more than the sum of
their parts, *i.e.*, they comprise an educational toy which, through
amusing activity not unlike a chemistry or sewing set (mentioned as
exemplars in the EN), introduces a child to astronomy. Emulating an
adult activity while gaining knowledge about astronomy amuses the child.
Consequently, the Stargazer constitutes toys put up in sets or outfits
within the subheading 9503.70 text and its EN. The goods when imported
together are more educational when used together than they would be if
they were imported alone. In other words, a set or outfit is created out
of the disparate objects.

We do not reach the question of whether these goods constitute a "GRI
3(b)" set because classification is resolved at GRI 1 by way of GRI 6.
GRI 6 provides, in pertinent part, that "for legal purposes, the
classification of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any related
subheading notes and, *mutatis mutandis*, to the above rules \[GRIs 1 --
6\], on the understanding that only subheadings at the same level are
comparable."

In consequence of the goods in the Stargazer being put up in a form
clearly indicating their use as toys, forming a set put up for retail
sale, they are classifiable as toys put up in sets or outfits for retail
sale.

The holding with regard to the Stargazer comports with several prior
Customs rulings: NY 858364, dated December 13, 1990, in which a toy
detective set was classified in subheading 9503.70.80, HTSUS; NY B88271,
dated July 28, 1997, in which a "Doring Kindersley Science Kit" was
classified in subheading 9503.70.00, HTSUS; NY A87577, dated September
27, 1996, in which, among other things, an "Expedition Camping Set" was
classified in subheading 9503.70.00, HTSUS; HQ 083048, dated October 12,
1989, in which a chemistry set was classified under subheading
9503.70.80, HTSUS; HQ 084926, dated September 20, 1989, in which a "Toy
Junior Science Set" was classified in subheading 9503.70.80, HTSUS; and
HQ 959686, dated March 31, 1998, in which a "Fun with Electronics" set
was classified in subheading 9503.70.00, HTSUS.

The holding with regard to the Pathfinder comports with a prior Customs
ruling:

Headquarters Ruling Letter (HQ) 962327, dated June 23, 2000, which
determined that the articles contained in the "Adventures in Art Travel
Pack" did not constitute a toy set or outfit under heading 9503, HTSUS,
and classified the individual components of Travel Pack according to
their *eo nomine* provisions.

**HOLDING:**

At GRI 6, the contents and container of the "Stargazer Fact Pack" are
classifiable in subheading 9503.70.00, HTSUS, as other toys put up in
sets or outfits, and parts and accessories thereof.

At GRI 1, the contents and container of the "Pathfinder Fact Pack" are
classifiable as follows:

1\. The 32 page, paperbound booklet ("A First Guide to Mapping") printed
with

> illustrations and text which introduces a child to mapping and
> includes references to other articles contained in the pack is
> classifiable under subheading 4901.99.00, HTSUS, which provides for
> other printed books containing 5 or more pages each, but not more than
> 48 pages each.

2\. The 16 page "Pathfinder Activity Book" printed with text and
diagrams

> providing text, diagrams and activities for introducing the use of and
> the
>
> creating maps is classifiable under subheading 4901.99.00, HTSUS,
>
> which provides for other printed books containing 5 or more pages
> each, but not more than 48 pages each.
>
> 3\. The printed map of the world with a "treasure map" printed on the
> reverse
>
> side is classifiable under subheading 4905.99.00, HTSUS, which
> provides
>
> for other maps . . . printed.
>
> 4\. The two sheets of stickers to be used with the world and treasure
> maps for
>
> labeling countries and continents and to create the treasure map are
>
> classifiable under subheading 4911.99.60, HTSUS, which provides for
> other
>
> printed matter: printed on paper in whole or in part by a lithographic
> process.
>
> 5\. The pair of plastic binoculars is classifiable under subheading
>
> 9005.10.00, HTSUS, which provides for other binoculars.

6\. The plastic flashlight is classifiable under subheading

8513.10.20, HTSUS which provides for flashlights.

7\. The felt-tipped pen is classifiable under subheading is classifiable
under

> subheading 9608.20.00, HTSUS, which provides for as felt tipped and
> other porous-tipped pens and markers.

8\. The plastic whistle with an attached loop of cord is classifiable
under

subheading 9208.90.00, HTSUS, which provides for whistles, call horns
and

other mouth-blown sound signaling instruments.

> 9\. The plastic compass is classifiable under subheading 9014.10.90,
> HTSUS,
>
> which provides for other direction finding compasses.
>
> 10\. The child-sized clear polyvinyl chloride (PVC) backpack which
> also serves
>
> as the retail package for the assortment of items is classifiable
> under
>
> subheading 4202.92.45, HTSUS, which provides for travel, sports and
>
> similar bags, with outer surface of sheeting of plastic.

**EFFECT ON OTHER RULINGS:**

NY E82029 is **MODIFIED**. In accordance with 19 U.S.C. §1625 (c), this
ruling will become effective sixty (60) days after its publication in
the Customs Bulletin.

Sincerely,

John Durant, Director

Commercial Rulings Division