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HQ 951965


September 18, 1992

CLA-2 CO:R:C:M 951965 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.60

Area Director of Customs
New York Seaport
6 World Trade Center
New York, NY 10048

RE: Reconsideration of HQ 950926; "Stencils & Pencils" Set; Toy

Dear Area Director:

This is in reply to your memorandum of May 29, 1992, requesting reconsideration of HQ 950926, dated March 31, 1992, regarding the classification of the "Stencils & Pencils" set, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise at issue is a set consisting of a 6.5" X 3.5" yellow plastic stencil depicting a rough outline of a farm and farm animals, four colored pencils, and three erasers (shaped like a cow, a rabbit, and a heart).

ISSUE:

What is the classification of the "Stencils & Pencils" set under the Harmonized Tariff Schedule of the United States

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS 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...

In HQ 950926 we classified the "Stencils & Pencils" set under subheading 9503.90.60, HTSUS, which provides for: "[o]ther toys: [o]ther: [o]ther: [o]ther toys (except models), not having a spring mechanism."

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to the HTSUS, regarding chapter 95, page 1585, state: "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults."

You argue that: "[i]t must be pointed out that the stencils are not designed to amuse." We disagree. Samples are potent witnesses, and this sample speaks for itself. Every design feature of this article delineates its design for the amusement of children. The packaging itself is clearly directed towards the amusement of children, and is printed with letters, hearts and stars in pink, red, orange, blue, green, and yellow. The crudeness of the pencils, the stencils, and the erasers, limits their use to that of merely amusement. For example, it would be difficult, if not impossible, to accurately reproduce a likeness of anything using this pencils and stencils set.

You argue that the "Stencils & Pencils" set is classifiable in chapter 90. However, the Legal Notes to chapter 90 state:

1. This chapter does not cover:

(ij) Articles of chapter 95.

Therefore, since it is emphatically our position that the set at issue is designed to amuse children, and is classifiable in chapter 95, it is therefore not classifiable in chapter 90, under any circumstances.

You argue that if the instant merchandise, which is designed for children, is classifiable as a toy in chapter 95, then consequently, all stencils (presumably whether or not for professionals such as architects, interior decorators, etc.) would also be classifiable as toys in chapter 95. We disagree. Only those articles which are "designed for the amusement of children or adults" are classifiable in chapter 95, and therefore excluded from chapter 90.

HOLDING:

The "Stencils & Pencils" set is classifiable in subheading 9503.90.60, HTSUS, which provides for: "[o]ther toys: [o]ther: [o]ther: [o]ther toys (except models), not having a spring mechanism." For the above stated reasons, HQ 950926, dated March 31, 1992, is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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