HQ 085758: Reconsideration of New York Ruling Letter 845270 regardingthe ES-90 Elementary Spelling Ace

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 085758

                         January 2, 1990


CLA-2 CO:R:C:G  085758  MBR

CATEGORY:  Classification

TARIFF NO.: 8543.80.90

Mr.Gregory J. Winsky
122 Burrs Road
Mt. Holly, NJ 08060

RE:  Reconsideration of New York Ruling Letter 845270 regarding
the ES-90 Elementary Spelling Ace

Dear Mr. Winsky:

  This is in reply to your letter of September 20, 1989, on
behalf of Franklin Computer, requesting reconsideration of the
classification of the "Elementary Spelling Ace," under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).

FACTS:

  The Franklin Computer Spelling Ace is a 4"X 6" yellow plastic
electronic device with a 16 character dot matrix LCD screen.  It
is battery operated and has a number of functions/games, such as;
spell correction, dictionary page number recall, user list,
flashcards, user hangman, hangman, wordblaster, jumble and score
keeping.  The promotional literature states that: "The Elementary
Spelling Ace creates enthusiasm for learning with its variety of
educational games.  Although the games are designed to improve
spelling and increase vocabulary skills, each one is loads of
fun!"

ISSUE:

  Under which of the following HTSUSA headings is the "Elementary
Spelling Ace" properly classified:

4901, HTSUSA, which provides for printed books, brochures,
leaflets and similar printed matter, whether or not in single
sheets.

8472, HTSUSA, which provides for other office machines (for
example, hectograph or stencil duplicating machines, addressing
machines, automatic banknote dispensers, coin-sorting machines,
coin-counting or wrapping machines, pencil-sharpening machines,
perforating or stapling machines).

9504, HTSUSA, which provides for articles for arcade, table or
parlor games, including pinball machines, bagatelle, billiards
and special tables for casino games; automatic bowling alley
equipment.

8543, HTSUSA, which provides for electrical machines and
apparatus, having individual functions, not specified or included
elsewhere in this chapter.

LAW AND ANALYSIS:

  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...

  You argue that the "Spelling Ace" is classifiable under
subheading 4901.91, HTSUSA, which provides for dictionaries.
Webster's Elementary Dictionary, page 142, (1986), (sold with
the "Spelling Ace" in the United States), defines "dictionary" as
"1: a book giving the meaning and usually the pronunciation of
words listed in alphabetical order 2: an alphabetical reference
book explaining words and phrases of a field of knowledge <a
medical dictionary> <biographical dictionary> 3: a book listing
words of one language in alphabetical order with definitions in
another language."  The "Elementary Spelling Ace" performs none
of these functions.

  The "Elementary Spelling Ace" is also not a book, as defined in
Webster's Elementary Dictionary, page 56: "1: a set of sheets of
paper bound together 2: a long written work <a book about birds>
3: a large division of a written work <the books of the bible> 4:
a pack of small items bound together <a book of matches>."

  The "Elementary Spelling Ace" is also not "similar printed
matter," provided for in 4901, HTSUSA.  "Similar printed matter"
does not mean "similar to printed matter," it means printed
matter that is similar to "printed books, brochures, leaflets."
To be similar to these items, the article necessarily must be
printed.  In order to be printed, the article must be the result
of a printing process.  The McGraw-Hill Encyclopedia of Science &
Technology, page 277, (1987), delineates the five general
printing processes: "1.  Relief printing, which includes
letterpress and flexography.  Letterset can also be included in
this process, although it is used on an offset press.  2.
Planographic printing, which includes offset lithography,
screenless lithography, and collotype (photogelatin).  3.
Intaglio, which includes gravure, steel-die, and copper-plate
engraving.  4. Stencil and screen printing.  5. Electronic
printing, which consists of electrostatic and ink jet printing."

  Legal Note #2 to chapter 49 also includes the following means
of printing in "printed matter:"

     For the purposes of chapter 49 the term "printed" also
     means reproduced by means of a duplicating machine,
     produced under control of a computer, embossed,
     photographed, photocopied, thermocopied or typewritten.

  It is Customs position that the phrase "produced under control
of a computer" is intended only to encompass the "hard copy" that
computer printers are able to produce and therefore does not
encompass characters that appear on an LCD screen.

  The "Elementary Spelling Ace" utilizes none of these methods
for rendering its characters on a liquid crystal display, and
thus is not printed matter, nor does it yield printed matter
(hard copy) which computer printers have the ability to do.  The
encoded RAM is also not "similar printed matter" because it is
also not the result of an aforementioned printing process.
Therefore, according to the principle of ejusdem generis,  the
"Elementary Spelling Ace" cannot be properly classifiable under
the provision for "Printed books, brochures, leaflets and similar
printed matter, whether or not in single sheets," because it is
not of the same class of goods as those enumerated under heading
4901, HTSUSA.

  The title to Chapter 49 provides for printed books, newspapers,
pictures and other products of the printing industry;
manuscripts, typescripts and plans.  Although chapter titles have
no legal significance and are to be used only for ease of
reference, this title clearly only mentions articles that are the
result of a printing process.

  You argue that the "Elementary Spelling Ace" is a composite
good since it is always packaged and sold in the United States
with the Webster's Elementary Dictionary.  However, the
"Elementary Spelling Ace" cannot be considered an element of a
composite good or a good put up in a set.  Only the "Elementary
Spelling Ace" electronic device is imported and thus, for
classification purposes, it cannot be considered as a set
encompassing a dictionary that is added after importation.
Benrus Watch Co. et al. v. United States, 21 CCPA 139, T.D. 46467
(1933), cert. denied. 291 U.S. 679, 54 S.Ct. 529, 78 L. Ed. 1067
(1933); United States v. Balt Anchor, Chain & Forge Division of
the Boston Metals Co. et al., 59 CCPA 122, C.A.D. 1051, 459 F.2d
1403 (1972); Franklin Industries, Inc. v. United States, USITR, 1
CIT 349, Slip Op. 81-55 (June 18, 1981).

  In New York Classification Letter #845270, September 14, 1989,
Customs position was that the instant merchandise was properly
classifiable under subheading 8472.90.80, HTSUSA, governing Other
office machines: Other.  The other office machines that are
provided for specifically are: Automatic bank note dispensers and
other coin or currency handling machines; Pencil sharpeners;
Numbering, dating and check-writing machines; Other. The
Harmonized Commodity Description and Coding System Explanatory
Notes to heading 84.72, page 1302, state:

     The term "office machines" is to be taken in a wide
     general sense to include all machines used in offices,
     shops, factories, workshops, schools, railway stations,
     hotels, etc., for doing "office work" (i.e., work
     concerning the writing, recording, sorting, filing,
     etc., of correspondence, documents, forms, records,
     accounts, etc.). (Emphasis added).

  The heading includes, inter alia: (1) Duplicating machines; (2)
Addressing machines; (3) Ticket issuing machines; (4) Coin
sorting or coin-counting machines; (5) Automatic banknote
dispensers; (6) Pencil sharpening machines; (7) Punching
machines; (8) Machines for perforating paper bands so that they
can be used in automatic typewriting machines; (9) Perforated
band operated machines.  Clearly, these are all machines that are
to be used in offices, for office work.

  The "Elementary Spelling Ace" is designed and marketed for the
exclusive use of children ages 6-12.  These children are not
likely to be working in factories, hotels or railway stations,
etc.  It is clear that the "Elementary Spelling Aces" are not
likely to be used in offices, for office work.

  The promotional literature states that: "The Elementary
Spelling Ace creates enthusiasm for learning with its variety of
educational games.  Although the games are designed to improve
spelling and increase vocabulary skills, each one is loads of
fun!"  Thus, the issue of essential character is presented. Is
this article's essential character that of a toy that is also
educational or is its essential character that of an educational
article that has toy features? There can be no question that this
article is marketed as a spelling learning device and that
parents would purchase it as an educational tool for their
children.  Furthermore, even if the ultimate consumer, the child,
primarily uses the game functions, he or she is unwittingly
improving their spelling and vocabulary as the parents intended.
Therefore, we find that the essential character is that of an
educational article.

  However, there is no provision in the HTSUSA for educational
articles.  Thus, the "Elementary Spelling Ace" is classifiable
under subheading 8543.80.90, HTSUSA, which provides for
electrical machines and apparatus, having individual functions,
not specified or included elsewhere in this chapter; other.

HOLDING:

  The "Elementary Spelling Ace" is classifiable under the
provision for electrical machines and apparatus in subheading
8543.80.90, HTSUSA. The rate of duty is 3.9% ad valorem.

Effect on other rulings:

  Ruling #HQ 083580, May 10, 1988, held that the "Elementary
Spelling Ace," "Word Wiz," "Language Master 3000" and "Word
Master" were all classifiable under 8472.90.80, HTSUSA, which
provides for office machines.  In so far as the "Elementary
Spelling Ace" and the "Word Wiz" are designed and marketed for
children, these two articles are properly classifiable in
subheading 8543.80.90, HTSUSA. Ruling #HQ 083580 and #NY 845270
no longer reflect the position of the Customs Service regarding
the "Elementary Spelling Ace" and the "Word Wiz."  Therefore,
these two Rulings are modified under the authority of section
177.9(d), Customs Regulations.

                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division