HQ 954595: Computing Kits; Explanatory Note 90.23

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 954595
                        November 15, 1993


CLA-2 CO:R:C:M 954595 DWS

CATEGORY: Classification

TARIFF NO.: 9023.00.00

Mr. Ken Lacy
KEL International
1838 El Camino Real #111
Burlingame, CA 94010

RE: Computing Kits; Explanatory Note 90.23

Dear Mr. Lacy:

     This is in response to your letter of June 24, 1993, on behalf
of Model Technologies, concerning the classification of a computing
kit under the Harmonized Tariff Schedule of the United States
(HTSUS).

FACTS:

     The merchandise consists of computing kits (model no. 30554)
manufactured in Germany.  The kit is comprised of two mini-motors,
two gears, one electromagnet, three lamps, eight pushbuttons, and
two potentiometers.  It is designed to create ten different working
models, including a machine tool, a material lifting system, a
rotator antenna, a sorting system, a dual-axis teach-in robot, a
"Tower of Hanoi", and a graphics panel.  The models which can be
created are designed to interface with a programmable computer.  It
is our understanding that the kits are sold almost exclusively to
educational mail-order shops, and are purchased mostly by junior
high and high schools for use by teachers in technology training
classes.  Learning materials are available for use in computer,
science and industrial technology classes, however they are not
imported with the computing kits.  Each kit costs approximately
$500.

     The subheading under consideration is as follows:

     9023.00.00: [i]nstruments, apparatus and models, designed for 
                 demonstrational purposes (for example, in        
                 education or exhibitions), unsuitable for other 
                 uses, and parts and accessories thereof.

     Goods classifiable under this provision receive duty-free
     treatment.

ISSUE:

     Whether the computing kits are classifiable under subheading
9023.00.00, HTSUS, as instruments designed for demonstrational
purposes.

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
 
     In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized.  The Explanatory Notes, although not dispositive, are to
be used to determine the proper interpretation of the HTSUS.  54
Fed. Reg. 35127, 35128 (August 23, 1989).  In part, Explanatory
Note 90.23 (pp. 1503, 1504) states that:

     [t]his heading covers a wide range of instruments, apparatus
     and models designed for demonstrational purposes (e.g., in
     schools, lecture rooms, exhibitions) and unsuitable for other
     uses.

     Subject to this proviso, the heading includes:

     (1) - (8) xxx

     (9) Small scale demonstrational models (of aircraft, ships,
         machines, etc.) generally of metal or wood (e.g., for
         advertising purposes, etc.).  It should, however, be 
         noted that models suitable solely for ornamental purposes
         are classified in their respective headings. . .

     [t]he heading also excludes:

     (a) - (b) xxx

     (c) Articles designed for both recreational and              
         demonstrational purposes (e.g., certain model sets of 
         mechanical parts; mechanical or electrical toy           
         locomotives, boilers, cranes, aircraft, etc.)(Chapter 95).

     In HQ 088879, dated April 27, 1992, the classification of
plastic mirrors under the HTSUS was at issue.  Once imported, the
mirrors were sold to professional third parties to be used for
demonstrational purposes.  In denying the protestant's claim for
duty-free treatment under subheading 9023.00.00, HTSUS, it was
stated that:

     [w]e believe the test of [9023.00.00] is that demonstrational 
     models are those that are to be used by the importer in 
     schools, lecture rooms or exhibitions.  In this case, the 
     importer intends to sell the models to third parties who in 
     turn will use such models for demonstration purposes.     

     It is our position that, based upon Explanatory Note 90.23,
and the test as stated in HQ 088879, the computing kits are
classifiable under subheading 9023.00.00, HTSUS.  A user can create
several small scale models of machines from the kits for
demonstrational uses.  The kits are primarily used by professionals
(teachers) for educational purposes in secondary schools, and no
evidence has been provided that they are suitable for other uses.

     The kits are not precluded from classification under
subheading 9023.00.00, HTSUS, as there is no evidence that they are
designed for recreational purposes, and, because of their high cost
and their educational use in schools, we find that they are not for
use as mechanical toys.

HOLDING:

     The computing kits are classifiable under subheading
9023.00.00, HTSUS, as instruments designed for demonstrational
purposes.

                            Sincerely,



                              John Durant, Director
                              Commercial Rulings Division