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HQ 084343


August 10, 1989

CLA-2 CO:R:C:G 084343 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.8000; 9902.71.13

Ms. Karen R. Mayer
The Putnam Berkley Group, Inc.
200 Madison Ave.
New York, NY 10016

RE: Classification of a pop-up book

Dear Ms. Mayer:

This is in reply to your letter of April 6, 1989, requesting a revoca tion or modification of NYRL 828852, classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

In a letter dated December 8, 1988 to our New York office, you formally requested a binding classification ruling on your book product. In a response dated January 4, 1989, you were informed that your mer chandise had already been ruled upon, as follows. On June 7, 1988, the Acting Area Director, New York Seaport, issued a ruling letter to Clear Freight, with respect to tariff classification of clip-on doll like figures and a story book, produced in Korea. The submitted sample was a "Pea Pod" pop-up storybook with three clip-on articles packaged to be sold together.
The clip-on figures are approximately four inches tall and have plastic bodies, yarn hair, painted-on features and textile fabric outfits. Their feet are together and their hands are held straight out from their bodies. When the top portion of the shoulders is pressed, the hands and feet separate, allowing the articles to be attached to various items.

The 11 x 8.5 inch storybook not only tells the tale of the "Pea Pods each page also boasts of a theater-like pop-up, designed to allow the child to arrange the clip-on toys and actually participate in the story. The scenarios include a schoolroom, a school bus, a playground, an ice cream parlor, and a rock concert. In each scene, the book is arranged to allow the "Pea Pod" character to either sit in the setting created by the book, or to take a more active position described on the page. In your request for modification or revocation, you state that your petition should be granted, for reason that the NYRL was obtained by a person who did not have a direct and demonstrable interest in the question or questions presented in the ruling request, that the ruling request was not accurate and complete in every material aspect, and that the NYRL was in error and not in accordance with the rules of inter pretation promulgated under the Harmonized Tariff System. We shall address each concern accordingly.

ISSUE:

Whether the NYRL at issue should be modified or revoked?

LAW AND ANALYSIS:

Clear & Demonstrable Interest

19 C.F.R. @177.1(c) provides, in pertinent part, that
any person who, as an importer or exporter of merchan dise, or otherwise, has a direct and demonstrable interest in the question or questions presented in the ruling request, or by the authorized agent of such person. [Emphasis added.]

ClearFreight, in making the ruling request, was a broker representing a client planning to import "The Pea Pod Pop Up Book," published by your subsidiary. It therefore had a clear and obvious need to know how such merchandise would be classified by U.S. Customs. Your lack of awareness of ClearFreight's ruling request is not relevant to Clear Freight's need to know. As a result, ClearFreight had a "clear and demonstrable interest" in the ruling request at issue, and the NYRL cannot be revoked or modified on this account.

Inaccurate/Incomplete Information

19 C.F.R. @177.9(b)(1) provides, in pertinent part, that

Each ruling letter is issued on the assumption that all of the information furnished . . . is accurate and complete in every material aspect.
You state that the ruling request was inaccurate or incomplete in failing to disclose the relationship between Intervisual, on whose behalf the ruling was requested, and the product on which the ruling was sought. This information, however, is not relevant to the tariff classifica tion issue presented. We often receive requests encompassing little more than a sentence or two, plus a sample, asking for a binding ruling. The instant case is no exception. As long as the information presented is sufficient to allow us to arrive at a rational determination, a more detailed ruling request is not required.

You further state that the ruling request was incomplete as Clear Freight omitted the material "fact" that the essential character of the merchandise is as a book. This contention requires little more than to inform you that essential character under the HTSUSA, where germane, is a conclusion of fact made by the U.S. Customs Service upon an examina tion of the merchandise and its status in commerce; it is not dependant upon representations made in the ruling request.

The NYRL Classification Was In Error

In the instant matter, the pop-up book and the dolls are packaged together for retail sale. Heading 4903, HTSUSA, provides for children's picture, drawing or coloring books. 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 ....

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's, taken in order.

Note 6 to Chapter 49, HTSUSA, states:

For the purposes of heading 4903, the expression "children's picture books" means books for children in which the pictures form the principal interest and the text is subsidiary.

This is clearly the case with the Pea Pod book. Therefore, if the book were to be imported on its own, heading 4903 would appear to describe it .

Heading 9502, HTSUSA, provides for dolls representing human beings. Therefore, if the dolls were to be imported on their own, heading 9502 would appear to describe them.
As both headings 4903 and 9502, HTSUSA, apply to the instant merchandise, further analysis is required. GRI 3 states, in pertinent part:

When by application of Rule 2(b) [goods of more than one material or substance] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(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) [which requires that goods be classified, if possible, under the more specific of the competing provisions], shall be classified as if they consisted of the material or com ponent which gives them their essential character, insofar as this criterion is applicable.

It is difficult in this case to determine the essential character of the merchandise, since the play value derives from the interplay between the dolls and the pages of the book. The dolls do not stand upright on their own, but are intended to be used in the book's pop-up "theaters" in accordance with the story directions on each page.

It is our opinion, however, that in the final analysis, the essential character is derived from the interplay between the dolls and the book; ergo, the merchandise is classifiable as a toy. The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. The Explanatory Note to heading 4903, covering children's picture books, provides, in pertinent part:

A child's picture book incorporating "stand-up" or movable figures also falls in this heading but if the article is essentially a toy it is excluded (Chapter 95).

We feel that the instant merchandise constitutes the consummate example of a book containing stand-up characters which has the essential character of a toy. The tome, which you contend furnishes the essential character of the set, is fundamentally neutralized when beheld unaccom panied by its dolls. This compelled interaction, we believe, is what was contemplated when the Explanatory Note was drafted. The book/dolls set, therefore, has an essential character of, and is classifiable as, a toy.
HOLDING:

As a result of the foregoing, the merchandise at issue is classifiable under subheading 9503.70.8000, HTSUSA, as other 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, other. If the merchandise is valued at not over five cents per unit, and the merchandise is entered on or before December 31, 1990, the applicable rate of duty, per subheading 9902.71.13, HTSUSA, is Free. Otherwise, the applicable rate of duty is 6.8 percent ad valorem.

Pursuant to section 177.9, Customs Regulations (19 C.F.R. @177.9), the ruling letter of June 7, 1988 is modified in conformity with the foregoing.

Sincerely,

John Durant, Director
Commercial Rulings Division

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