HQ 084343: Classification of a pop-up book

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                               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