HQ 085758

January 2, 1990

CLA-2 CO:R:C:G 085758 MBR

CATEGORY: Classification

TARIFF NO.: 8543.80.90

Mr.Gregory J. Winsky

122 Burrs Road

Mt. Holly, NJ 08060

RE: Reconsideration of New York Ruling Letter 845270 regarding

the ES-90 Elementary Spelling Ace

Dear Mr. Winsky:

This is in reply to your letter of September 20, 1989, on

behalf of Franklin Computer, requesting reconsideration of the

classification of the \"Elementary Spelling Ace,\" under the

Harmonized Tariff Schedule of the United States Annotated

(HTSUSA).

FACTS:

The Franklin Computer Spelling Ace is a 4\"X 6\" yellow plastic

electronic device with a 16 character dot matrix LCD screen. It

is battery operated and has a number of functions/games, such as;

spell correction, dictionary page number recall, user list,

flashcards, user hangman, hangman, wordblaster, jumble and score

keeping. The promotional literature states that: \"The Elementary

Spelling Ace creates enthusiasm for learning with its variety of

educational games. Although the games are designed to improve

spelling and increase vocabulary skills, each one is loads of

fun!\"

ISSUE:

Under which of the following HTSUSA headings is the \"Elementary

Spelling Ace\" properly classified:

4901, HTSUSA, which provides for printed books, brochures,

leaflets and similar printed matter, whether or not in single

sheets.

8472, HTSUSA, which provides for other office machines (for

example, hectograph or stencil duplicating machines, addressing

machines, automatic banknote dispensers, coin-sorting machines,

coin-counting or wrapping machines, pencil-sharpening machines,

perforating or stapling machines).

9504, HTSUSA, which provides for articles for arcade, table or

parlor games, including pinball machines, bagatelle, billiards

and special tables for casino games; automatic bowling alley

equipment.

8543, HTSUSA, which provides for electrical machines and

apparatus, having individual functions, not specified or included

elsewhere in this chapter.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI\'s) to the HTSUSA

govern the classification of goods in the tariff schedule. GRI 1

states, in pertinent part:

\...classification shall be determined according to the terms

of the headings and any relative section or chapter notes\...

You argue that the \"Spelling Ace\" is classifiable under

subheading 4901.91, HTSUSA, which provides for dictionaries.

Webster\'s Elementary Dictionary, page 142, (1986), (sold with

the \"Spelling Ace\" in the United States), defines \"dictionary\" as

\"1: a book giving the meaning and usually the pronunciation of

words listed in alphabetical order 2: an alphabetical reference

book explaining words and phrases of a field of knowledge \<a

medical dictionary\> \<biographical dictionary\> 3: a book listing

words of one language in alphabetical order with definitions in

another language.\" The \"Elementary Spelling Ace\" performs none

of these functions.

The \"Elementary Spelling Ace\" is also not a book, as defined in

Webster\'s Elementary Dictionary, page 56: \"1: a set of sheets of

paper bound together 2: a long written work \<a book about birds\>

3: a large division of a written work \<the books of the bible\> 4:

a pack of small items bound together \<a book of matches\>.\"

The \"Elementary Spelling Ace\" is also not \"similar printed

matter,\" provided for in 4901, HTSUSA. \"Similar printed matter\"

does not mean \"similar to printed matter,\" it means printed

matter that is similar to \"printed books, brochures, leaflets.\"

To be similar to these items, the article necessarily must be

printed. In order to be printed, the article must be the result

of a printing process. The McGraw-Hill Encyclopedia of Science &

Technology, page 277, (1987), delineates the five general

printing processes: \"1. Relief printing, which includes

letterpress and flexography. Letterset can also be included in

this process, although it is used on an offset press. 2.

Planographic printing, which includes offset lithography,

screenless lithography, and collotype (photogelatin). 3.

Intaglio, which includes gravure, steel-die, and copper-plate

engraving. 4. Stencil and screen printing. 5. Electronic

printing, which consists of electrostatic and ink jet printing.\"

Legal Note #2 to chapter 49 also includes the following means

of printing in \"printed matter:\"

For the purposes of chapter 49 the term \"printed\" also

means reproduced by means of a duplicating machine,

produced under control of a computer, embossed,

photographed, photocopied, thermocopied or typewritten.

It is Customs position that the phrase \"produced under control

of a computer\" is intended only to encompass the \"hard copy\" that

computer printers are able to produce and therefore does not

encompass characters that appear on an LCD screen.

The \"Elementary Spelling Ace\" utilizes none of these methods

for rendering its characters on a liquid crystal display, and

thus is not printed matter, nor does it yield printed matter

(hard copy) which computer printers have the ability to do. The

encoded RAM is also not \"similar printed matter\" because it is

also not the result of an aforementioned printing process.

Therefore, according to the principle of ejusdem generis, the

\"Elementary Spelling Ace\" cannot be properly classifiable under

the provision for \"Printed books, brochures, leaflets and similar

printed matter, whether or not in single sheets,\" because it is

not of the same class of goods as those enumerated under heading

4901, HTSUSA.

The title to Chapter 49 provides for printed books, newspapers,

pictures and other products of the printing industry;

manuscripts, typescripts and plans. Although chapter titles have

no legal significance and are to be used only for ease of

reference, this title clearly only mentions articles that are the

result of a printing process.

You argue that the \"Elementary Spelling Ace\" is a composite

good since it is always packaged and sold in the United States

with the Webster\'s Elementary Dictionary. However, the

\"Elementary Spelling Ace\" cannot be considered an element of a

composite good or a good put up in a set. Only the \"Elementary

Spelling Ace\" electronic device is imported and thus, for

classification purposes, it cannot be considered as a set

encompassing a dictionary that is added after importation.

Benrus Watch Co. et al. v. United States, 21 CCPA 139, T.D. 46467

(1933), cert. denied. 291 U.S. 679, 54 S.Ct. 529, 78 L. Ed. 1067

(1933); United States v. Balt Anchor, Chain & Forge Division of

the Boston Metals Co. et al., 59 CCPA 122, C.A.D. 1051, 459 F.2d

1403 (1972); Franklin Industries, Inc. v. United States, USITR, 1

CIT 349, Slip Op. 81-55 (June 18, 1981).

In New York Classification Letter #845270, September 14, 1989,

Customs position was that the instant merchandise was properly

classifiable under subheading 8472.90.80, HTSUSA, governing Other

office machines: Other. The other office machines that are

provided for specifically are: Automatic bank note dispensers and

other coin or currency handling machines; Pencil sharpeners;

Numbering, dating and check-writing machines; Other. The

Harmonized Commodity Description and Coding System Explanatory

Notes to heading 84.72, page 1302, state:

The term \"office machines\" is to be taken in a wide

general sense to include all machines used in offices,

shops, factories, workshops, schools, railway stations,

hotels, etc., for doing \"office work\" (i.e., work

concerning the writing, recording, sorting, filing,

etc., of correspondence, documents, forms, records,

accounts, etc.). (Emphasis added).

The heading includes, inter alia: (1) Duplicating machines; (2)

Addressing machines; (3) Ticket issuing machines; (4) Coin

sorting or coin-counting machines; (5) Automatic banknote

dispensers; (6) Pencil sharpening machines; (7) Punching

machines; (8) Machines for perforating paper bands so that they

can be used in automatic typewriting machines; (9) Perforated

band operated machines. Clearly, these are all machines that are

to be used in offices, for office work.

The \"Elementary Spelling Ace\" is designed and marketed for the

exclusive use of children ages 6-12. These children are not

likely to be working in factories, hotels or railway stations,

etc. It is clear that the \"Elementary Spelling Aces\" are not

likely to be used in offices, for office work.

The promotional literature states that: \"The Elementary

Spelling Ace creates enthusiasm for learning with its variety of

educational games. Although the games are designed to improve

spelling and increase vocabulary skills, each one is loads of

fun!\" Thus, the issue of essential character is presented. Is

this article\'s essential character that of a toy that is also

educational or is its essential character that of an educational

article that has toy features? There can be no question that this

article is marketed as a spelling learning device and that

parents would purchase it as an educational tool for their

children. Furthermore, even if the ultimate consumer, the child,

primarily uses the game functions, he or she is unwittingly

improving their spelling and vocabulary as the parents intended.

Therefore, we find that the essential character is that of an

educational article.

However, there is no provision in the HTSUSA for educational

articles. Thus, the \"Elementary Spelling Ace\" is classifiable

under subheading 8543.80.90, HTSUSA, which provides for

electrical machines and apparatus, having individual functions,

not specified or included elsewhere in this chapter; other.

HOLDING:

The \"Elementary Spelling Ace\" is classifiable under the

provision for electrical machines and apparatus in subheading

8543.80.90, HTSUSA. The rate of duty is 3.9% ad valorem.

Effect on other rulings:

Ruling #HQ 083580, May 10, 1988, held that the \"Elementary

Spelling Ace,\" \"Word Wiz,\" \"Language Master 3000\" and \"Word

Master\" were all classifiable under 8472.90.80, HTSUSA, which

provides for office machines. In so far as the \"Elementary

Spelling Ace\" and the \"Word Wiz\" are designed and marketed for

children, these two articles are properly classifiable in

subheading 8543.80.90, HTSUSA. Ruling #HQ 083580 and #NY 845270

no longer reflect the position of the Customs Service regarding

the \"Elementary Spelling Ace\" and the \"Word Wiz.\" Therefore,

these two Rulings are modified under the authority of section

177.9(d), Customs Regulations.

Sincerely,

John Durant, Director

Commercial Rulings Division