HQ 087026: Classification of pencil pouch and contents

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 087026


                                     July 24, 1990



            CLA-2 CO:R:C:G  087026 DRR

            CATEGORY:  Classification

            TARIFF NO.: 4202.32.200

            Ms. Mona Webster
            Target Stores
            33 South Sixth Street
            P.O. Box 1392
            Minneapolis, Minnesota 55440-1392

            Re:  Classification of pencil pouch and contents

            Dear Ms. Webster:

                 This is in response to your letter dated March 20, 1990,
            requesting the classification of a pencil pouch, pencil,
            eraser, and ruler under the Harmonized Tariff Schedule of the
            United States Annotated (HTSUSA).

            FACTS:

                 The merchandise at issue, style s250008/4, consists of a 4
            3/4 inches by 8 1/2 inches polyvinyl chloride pencil pouch with
            a zipper closure, that will be imported containing a wood cased
            pencil, a plastic ruler and a rubber eraser.  The pencil is a
            product of Taiwan, the other items are products of Hong Kong.
            The items will be packaged together for retail sale.  The price
            breakdown of the articles is: pencil case $.25, pencil $.09,
            eraser $.10, ruler $.04, for a total of $.48.

            ISSUE:

                 Are the items classifiable as a set, or must they be
            classified separately?

            LAW AND ANALYSIS:

                 Classification under the HTSUSA is in accordance with the
            General Rules of Interpretation (GRI).  GRI 1 provides that
            classification is determined first in accordance with the terms
            of the headings of the tariff and any relative section and
            chapter notes.













                                          -2-


                 In light of the fact that the school set is made up of
            different elements, a pencil pouch, a pencil, eraser and ruler,
            individually provided for, it cannot be classified on the basis
            of GRI 1 alone.  However, goods which are prima facie
            classifiable under two or more headings are classified in
            accordance with the provisions of GRI 3.  When, as in the
            instant case, those headings each refer to only part of the
            materials contained in sets, they are treated as equally
            specific and classified pursuant to GRI 3(b).

                 The Explanatory Notes to the HTSUSA may be consulted for
            guidance as to the correct international interpretation of the
            various HTSUSA provisions.  The Explanatory Notes for GRI 3(b)
            state that the goods put up in sets for retail sale are those
            which consist of at least two different articles which are
            classifiable in different headings; consist of products or
            articles put up together to meet a particular need or carry out
            a specific activity; and are put up in a manner suitable for
            sale directly to users without repacking.

                 Containers or holders such as the pouch at issue raise a
            question as to the relevance of the container or holder to the
            set.  If the holder, when considered together with the other
            articles does not meet a particular need or carry out a
            specific activity in relation to those items, it is regarded as
            a disparate article and may thereby cause the set to fail.  A
            strict interpretation of the criteria under paragraph (X)(b) of
            the Explanatory Notes pertaining to sets would in effect
            nullify the utilization of GRI 3(b) in most instances where the
            components of a set are imported in a container or holder.
            Such goods would therefore be classified individually under the
            appropriate headings of the tariff schedule.

                 We are of the opinion that the classification of goods
            under GRI 3(b) is intended to include sets whether or not they
            are imported in containers.  We find support for our position
            in the Explanatory Notes to Rule 3(b), paragraph (X)(3), which
            presents an example in the form of a drawing kit contained in a
            pouch, classifiable as a set for the purposes of GRI 3(b),
            thereby indicating that the presence of a carrying case or
            pouch does not cause the goods to fail to qualify as a set.

                 In the instant case, the pouch is intended to be used with


















                                          -3-


            its contents to carry out a specific activity, i.e., writing,
            or perhaps, for younger children, drawing.  The pouch serves a
            particular need to the extent that it is used to store and
            carry the other items so that they will be readily available
            when needed.  The pouch and its contents are therefore a set
            for purposes of GRI 3.  The pouch is outside the scope of GRI 5
            because it is not specially shaped or fitted for the contents
            and is intended for long-term or repetitive use.

                 Having determined that the items are a set, we must next
            determine the essential character in order to classify the item
            under GRI 3(b).  According to GRI 3(b), goods put up in sets
            for retail sale, shall be classified as if they consisted of
            the material or component which gives them their essential
            character.  The Explanatory Notes state that "the factor which
            determines essential character will vary as between different
            kinds of goods.  It may, for example, be determined by the
            nature of the material or component, its bulk, quantity, weight
            or value, or by the role of a constituent material in relation
            to the use of the goods.  The pouch clearly predominates over
            the other items by weight, size and value, and therefore
            provides the essential character.

            HOLDING:

                 The pouch, pencil, eraser and ruler are classified as a
            set under subheading 4202.32.2000, HTSUSA, as other articles of
            a kind normally carried in the pocket or handbag with an outer
            surface of plastic sheeting, with a duty rate of 20 percent ad
            valorem.

                 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
            internal issuance of the U.S. Customs Service, which is
            available for inspection at your local Customs office.

                 Due to the changeable nature of the statistical annotation


















                                          -4-


            and the restraint (quota/visa) categories applicable to textile
            merchandise, you should contact your local Customs office prior
            to importation of this merchandise to determine the current
            status of any import restraints or requirements.

                 Please be advised that country of origin marking
            regulations require that items of foreign origin be
            conspicuously marked with the country of origin in a manner
            that is permanent, legible, indelible and written in English.

                 Your sample is being returned to you, as requested.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division










































            6 cc: Area Dir., N.Y. Seaport
            D. Rimmer library/peh
            087026