HQ 958369

March 24, 1998

CLA-2 RR:CR:GC 958369 MMC

CATEGORY: Classification

TARIFF NO.: 9611.00.00

Port Director, U.S. Customs Service

33 New Montgomery St. , \# 1501

San Francisco, CA 94105

RE: Protest 2809-95-100805; \"Wild Guss Stamping Set\"

Dear Port Director:

The following is our response to Protest 2809-95-100805,

dated June 13, 1995, concerning your classification decision

regarding an article identified as \"Wild Guss Stamping Set\" under

the Harmonized Tariff Schedule of the United States (HTSUS). No

sample or illustration of the subject article was forwarded to

this office.

FACTS:

The subject article is identified as \# 2085 and consists of

2 ink pads (one red and one blue) and 8 rubber stamps which

include square stamps of a small island surrounded by water and

the words \"RIMBA\'S ISLAND\" and a question mark, and six circular

stamps of various actual or mythical animal heads.

Protestant was directed to enter the stamping set under

subheading 9611.00.0000 HTSUS, as \"\[d\]ate, sealing or numbering

stamps and the like (including devices for printing or embossing

labels), designed for operating in the hand; hand-operated

composing sticks and hand printing sets incorporating such

composing sticks.\" Protestant asserts that the articles are

classifiable under subheading 9503.70.0030, HTSUS, as \"\[o\]ther

toys; reduced-size (\"scale\") models and similar recreational

models, working or not; puzzles of all kinds; and accessories

thereof: other toys, put up in sets or outfits, and parts and

accessories thereof: other.\" The entry was made in January of

1995, and liquidated in June of 1995. A protest was timely

filed on June 13, 1995. The headings under consideration are as

follows:

9503 Other toys; reduced-size (\"scale\") models and similar

recreational models, working or not; puzzles of all

kinds; and accessories thereof

9611 Date, sealing or numbering stamps and the like

(including devices for printing or embossing labels),

designed for operating in the hand; hand-operated

composing sticks and hand printing sets incorporating

such composing sticks

9612 Typewriter or similar ribbons, inked or otherwise

prepared for giving impressions, whether or not on

spools or in cartridges; ink pads, whether or not

inked, with or without boxes

ISSUE:

Whether the \"Wild Guss Stamping Set\" is classifiable under

the tariff provision for printing stamps, the provision for ink

pads, or as a toy ?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with

the General Rules of Interpretation (GRI\'s). 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 and 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\'s may

then be applied.

In understanding the language of the HTSUS, the Explanatory

Notes of the Harmonized Commodity Description and Coding System

(ENs) may be utilized. The ENs, although not dispositive, or

legally binding, provide a commentary on the scope of each

heading, and are generally indicative of the proper

interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg.

35127, 35128 (August 23, 1989).

Protestant has suggested that the subject article is not

described by heading 9611, HTSUS. In support of this position,

protestant cites ENs 96.11 (4). EN 96.11 states:

This heading covers date, sealing and similar stamps and

composing sticks, provided they are of a type designed to be

used independently in the hand. (Date, sealing and similar

stamps incorporating a base for fixing on a table, desk,

etc., or designed for operating on a stand are excluded -

see the Explanatory Note to heading 84.72.)

These articles include:

\* \* \*

\(2\) Stamps of all kinds, with or without the printing band

or self-inking device; for example, date stamps,

multiformula stamps, docketing and ticketing stamps,

numbering stamps (self-changing or not), roller stamps,

pocket stamps (usually consisting of a stamp and ink-pad in

a protective case).

\* \* \*

\(4\) Small hand printing sets (not being toys) consisting of

a box containing a hand-operated composing or setting stick,

interchangeable characters, tweezers and an ink-pad.

EN 96.11(4) describes a very specific particular type of printing

set which consists of a box with a hand-operated composing stick,

interchangeable characters, tweezers and ink pad. Such a device

operates by a person setting, with the tweezers, various

characters into the box and then placing the paper and ink in the

appropriate place. The paper is then pressed with the setting

stick to have the ink leave its mark. The \"Wild Guss Stamping

Set\" does not operate in such a manner.

The ENs for heading 9611 clearly indicate that this heading

covers stamps of a type designed to be used independently in the

hand. EN 96.11(2) emphasizes the broad scope of the heading in

by stating that stamps of all kinds, with or without a printing

band or self-inking device, are within the scope of this heading.

Protestant argues that even if the stamp components of the

subject article meet the description of heading 9611, HTSUS, they

are nonetheless excluded from classification in heading 9611 by

operation of Note 1(l) to Chapter 96, which excludes from

classification in Chapter 96, \"\[a\] articles of Chapter 95 (toys,

games, sports requisites).\" Therefore, if the \"Wild Guss

Stamping Set\" is classifiable as a toy for tariff purposes, it is

excluded from classification in Chapter 96.

The term \"toy\" is not defined in the HTSUS. However, the

ENs to Chapter 95 state, in pertinent part, that \"\[t\]his Chapter

covers toys of all kinds whether designed for the amusement of

children or adults.\" Although not set forth as a definition of

\"toys,\" we have interpreted the just-quoted passage from the ENs

as equating \"toys\" with articles \"designed for the amusement of

children or adults,\" although we believe such design must be

corroborated by evidence of the articles\' principal use.

When the classification of an article is determined with

reference to its principal use, Additional U.S. Rule of

Interpretation 1(a), HTSUS, provides that, in the absence of

special language or context which otherwise requires, such use is

to be determined in accordance with the use in the United States

at, or immediately prior to, the date of importation, of goods of

that class or kind to which the imported goods belong, and the

controlling use is the principal use. In other words, the

article\'s principal use at the time of importation determines

whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS,

provides general criteria for discerning the principal use of an

article, it does not provide specific criteria for individual

tariff provisions. However, the U.S. Court of International

Trade (CIT) has provided factors, which are indicative but not

conclusive, to apply when determining whether merchandise falls

within a particular class or kind. They include: general

physical characteristics, the expectation of the ultimate

purchaser, channels of trade, environment of sale (accompanying

accessories, manner of advertisement and display), use in the

same manner as merchandise which defines the class, economic

practicality of so using the import, and recognition in the trade

of this use. United States v. Carborundum Company, 63 CCPA 98,

C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Protestant has made no argument indicating which of the

article\'s physical characteristics indicate its principal use as

a toy. Furthermore, despite requests made to protestant\'s

counsel, no information has been provided concerning the

expectation of the stamp set\'s ultimate purchaser, the channels

of trade in which it travels, its environment of sale, its use in

the same manner as a toy, the economic practicality of using the

stamp set as a toy or its recognition in the trade as a toy. As

its principal use as a toy has not been demonstrated, it cannot

be classifiable as such.

Inasmuch as the \"Wild Guss Stamping Set\" is not classifiable

pursuant to GRI 1 as a toy set, and its individual components are

classifiable in different headings, it cannot be classified by

reference to GRI 1. GRI 2(b) states, in pertinent part, 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) states, in pertinent part, that:

\[w\]hen 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.

Because headings 9611 and 9612 each refer to only part of the

components in a possible set put up for retail sale, the headings

are considered equally specific and GRI 3(b) must be applied.

GRI 3(b), which states in pertinent part that:

\[m\]ixtures, 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.

Explanatory Note X to GRI 3(b), indicates that for purposes of

the GRI 3(b), 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 consist of components

which are prima facie classifiable under more than one heading.

Additionally, the components are put up together to carry out the

specific activity of stamping. Finally, we note that the

invoice appears to indicate that the \"Wild Guss Stamping Set\" was

put up in a manner suitable for sale directly to users without

repacking. Therefore, the \"Wild Guss Stamping Set\" is considered

a \"set\" for tariff purposes. Classification of the set will be

determined by its essential character.

EN VIII to GRI 3(b), states, in pertinent part, that:

\[t\]he 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 stamps themselves predominate over the article\'s other

components due not only to their greater numbers, but also to the

fact that they create the outline of the figurine which will be

stamped. The stamps, therefore, impart the set\'s essential

character.

Heading 9611, HTSUS, provides for \"\[d\]ate, sealing or

numbering stamps, and the like (including devices for printing or

embossing labels), designed for operating in the hand.\" We find

that \"Wild Guss Stamping Set\" is correctly classified in heading

9611\. This heading has no subheadings.

HOLDING:

The protest should be DENIED. The article identified as

\"Wild Guss Stamping Set\" is properly classified under heading

9611, HTSUS, which provides for \"\[d\]ate, sealing or numbering

stamps and the like, (including devices for printing or

embossinglabels), designed for operating in the hand;

hand-operated composing sticks and hand printing sets

incorporating such composing sticks,\" with a 1995 general column

one rate of duty of 4.8 percent ad valorem.

In accordance with section 3A(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office to the

Protestant no later than 60 days from the date of this letter.

Any reliquidation of the entry in accordance with this decision

must be accomplished prior to the mailing of the decision. Sixty

days from the date of this decision, the Office of Regulations

and Rulings will take steps to make the decision available to

Customs personnel via the Customs Rulings Module in ACS and to

the public via the Diskette Subscription Service, Freedom of

Information Act and other public access channels. A copy of this

decision should be attached to the Customs Form 19, Notice of

Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director

Commercial Rulings Division