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HQ 085267

May 9, 1990

CLA-2 CO:R:C:G: 085267 DPS


TARIFF NO.: 4911.99.6000, 6210.10.4025, 9503.70.8000; 9608.20.0000

John M. Peterson, Esquire
Neville, Peterson & Williams
39 Broadway
New York, N.Y. 10006

RE: Totes Graffitti Gear

Dear Mr. Peterson:

This is in response to your letter of July 11, 1989, on behalf of your client, Totes, Incorporated, in which you requested Headquarters reconsideration of New York Ruling Letter (NYRL) 840860 of May 23, 1989, regarding the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of Totes' "Graffiti Gear." A meeting with members of my staff was held on November 11, 1989, in which you reiterated your client's position. Your submission of January 2, 1990, again outlined your client's views, but added no new information relevant to the classification decision.


The subject merchandise, described as a "Graffiti Gear" drawing set, is stated to consist of the following four items, although only three items (the jacket, markers, and an idea/instruction poster) were provided to Headquarters as samples: (1) a white jacket made of 100% nonwoven spunbonded "Tyvec" (or Tyvek) olefin material, it has a zippered front opening, a high collar, long sleeves and elastic at the end of each sleeve and the bottom of the jacket to hold it snugly against the wearer's body; (2) a set of water-based, washable felt tipped markers in varying colors with plastic container; (3) a plastic stencil featuring alphabetical, numerical, and symbolic patterns intended to be used to draw on the jacket at the user's discretion; and (4) a cardboard shield/blotter, which is to be used as a protective surface during drawing on the jacket. The Tyvec jacket is a product of Taiwan; the markers will be products of Italy, or some other source country to be determined, and the stencil and blotter will be from England, or some other source country to be determined.

The importer states that the subject merchandise is a unique "drawing toy designed for the amusement of children and teenagers." Consistent with this view, the importer asserts that the subject "Graffiti Gear" is classifiable, pursuant to GRI 1, under subheading 9503.70.8000, HTSUSA, the provision for other toys, put up in sets or outfits, other. In support of this position, the importer argues that the play aspect of the item bears on its identity as a toy. The importer further states, in the original submission at page 8, that "the primary function of the toy ["Graffiti Gear"] is that of drawing, an activity intended for the amusement of the user." Implicit in the importer's position is the assertion that this item should be considered a toy.

NYRL 840860 referred to the subject merchandise as a set, and stated that the essential character of the merchandise was imparted to it by the jacket. Therefore, NYRL 840860 classified the subject "Graffiti Gear" item under subheading 6210.10.4020, HTSUSA, the provision which covers the "Tyvec" jacket.


(1) Whether the subject "Graffiti Gear" item is considered an "other toy put up in sets," consistent with items normally classified under subheading 9503.70, HTSUSA.

(2) Whether, for tariff purposes, the "Graffiti Gear" item is considered a set.

(3) How the "Graffiti Gear" product is classified.


The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes do not otherwise require, according to the remaining GRI's, taken in order.

Here, the first question to be considered is whether a single heading exists which covers the subject "Graffiti Gear" article (hereinafter Graffiti Gear). The importer argues that subheading 9503.70, HTSUSA, covers the subject merchandise. In support of this position, the importer refers to the Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level and cites the following language from Explanatory Note 95.03, at p. 1588:

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).

The part of the Explanatory Notes that the importer omitted from the discussion is equally, if not more important to this case, than the language set forth above. The language from the Explanatory Notes which counsel did not refer to concerns items that are excluded from Heading 9503. The continuation of Explanatory Note 95.03, states, at p. 1589:

This heading also excludes:

(a) Paints put up for children's use (heading 32.13).

(b) Modelling pastes put up for children's amusement (heading 34.07).

(c) Children's picture, drawing or colouring books of heading 49.03.

(d) Transfers (heading 49.08).


(h) Crayons and pastels for children's use, of heading 96.09.

(ij) Slates and blackboards, of heading 96.10.

The items described above are expressly excluded by the Explanatory Notes from the "other toy" provision. The items listed above, particularly (a), (c), (h) and (ij), have primarily a drawing and craft function. Although they may tend to amuse those who use them, such amusement is incidental to their primary purpose. Graffiti Gear's component parts, especially the markers, are more akin to the items specifically excluded by the Explanatory Notes to Heading 9503 than those included therein. Furthermore, we do not consider Graffiti Gear to be an instructional toy similar to the exemplars described in the Explanatory Notes (chemistry or sewing sets). Accordingly, it is Customs' position that Graffiti Gear is not classifiable in subheading 9503.70.8000, HTSUSA, the provision for other toys, put up in sets, other.

No heading, by itself, covers the subject merchandise as packaged. Because the three components of the Graffiti Gear product are classifiable under three seperate headings, we must determine whether the product is a set to be classified in accordance with the principles of GRI 3. The Explanatory Notes to GRI 3(b) set forth guidelines in determining what constitutes a "set". The relevant note states, in part:

(X) For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean 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).

In this case, at least two of the above "set" criteria are satisfied. First, the subject merchandise consists of at least two different articles which are prima facie classifiable in different headings. Secondly, the items are put up in a manner suitable for sale directly to consumers without repacking. The third criterion, that the goods consist of articles put up together to meet a particular need or carry out a specific activity, does not appear to be satisfied. The markers are used for drawing. The jacket, although intended to be written upon by the purchaser, does not exclusively serve that function. It is not simply a medium for the other components of the Graffiti Gear package. Although flimsy, the jacket functions as a jacket with or without the designs. Decorated or not, the jacket can be worn. The activity of drawing is unrelated to the function of the jacket.

Marketing and packaging information depicts children and teenagers wearing their decorated Graffiti Gear jackets, as well as decorating them. These activities are distinct so as to eliminate these items, even if packaged together, from being considered a set. Information obtained through sources other than the importer, indicate that a variety of accessory packs which contain squeeze paint, sparkle paint, fluorescent markers and other items for use in decorating the jackets are marketed separately. This fact further confirms Customs view as to the distinct nature of the graffiti gear components and their failure
to satisfy the set requirements of GRI 3(b). Accordingly, the subject merchandise is not considered to be a set in accordance with the guidelines in the Explanatory Notes to GRI 3(b). Rather, each item is classifiable separately under GRI 1.


The Graffiti Gear jacket is classifiable in subheading 6210.10.4025, HTSUSA, which provides for garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907, other, other. Items classified under this subheading are subject to a duty rate of 17 percent ad valorem. The jacket falls within textile category designation 659. As a product of Taiwan this merchandise will be subject to the requirement of visa and quota restraints based upon international textile trade agreements.

The applicable subheading for the markers is 9608.20.0000, HTSUSA, which provides for felt tipped and other porous-tipped pens and markers. Items classified under this provision are subject to a duty rate of 8 percent ad valorem.

The color "Idea Poster" and instruction sheet is classifiable under subheading 4911.99.6000, the provision for other printed matter, other, printed on paper in whole or in part by lithographic process. Items classified under this provision are subject to a duty rate of 0.4 percent ad valorem.

None of the samples presented to Headquarters by the importer's counsel contained the plastic stencil or the cardboard shield/blotter. Nor did the packaging indicate that the two items were even included in the Graffiti Gear kit. Without samples of these items, we are unable to provide a definitive classification of the plastic stencil and blotter. If the importer intends to include these items in the Graffiti Gear package, then samples should be provided, and a ruling on those specific items should be requested.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the textile restraint (quota/visa) categories, you should contact your local customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.


John Durant, Director

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