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HQ 959232




June 2, 1998

CLA-2 RR:CR:GC 959232 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.00

Barry Levy, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, New York 10004

RE: "Tattoo Graphix"; HQ 957894 revoked

Dear Mr. Levy:

On December 14, 1995, this office issued to you, on behalf of Toy Max, Headquarters Ruling (HQ) 957894, in which Customs classified an article known as "Tattoo Graphix," under subheading 3926.10.000 of the Harmonized Tariff Schedule of the United States (HTSUS). Subheading 3926.10.0000, HTSUS, provides for "[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies." "Tattoo Graphix" is composed of a plastic carrying case/storage case/drawing surface (described as a "creepy crawlers Tattoo machine"), six sheets of Tattoo designs, four non-toxic, colored markers, thirty sheets of blank Tattoo paper, one plastic water applicator bottle, and a sheet of instructions, all of which are imported in a decorative cardboard box. This classification resulted from a determination that "Tattoo Graphix" in its entirety was not a toy set for tariff purposes and, that as a General Rule of Interpretation (GRI) 3(b) set, the carrying case clearly predominated over the other components used to trace, draw, cut and transfer the decal to the user's moistened skin.

Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186), notice of the proposed revocation of HQ 957894 was published, on April 15, 1998, in the Customs Bulletin, Volume 32, Number 15. No comments were received in response to the notice.

Upon further examination, we are of the opinion that "Tattoo Graphix" is properly classified in heading 9503, HTSUS, which provides for "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof."

FACTS:

The sample article, identified as item no. 7007, contains the materials needed to "[m]ake lots of cool & creepy tattoos!" The article is composed of a plastic carrying case/storage case/ drawing surface (described as a "creepy crawlers Tattoo machine"), six sheets of tattoo designs, four non-toxic, colored markers, thirty sheets of blank tattoo paper, one plastic water applicator bottle, and a sheet of instructions, all of which are imported in a decorative cardboard box. The article is designed for use by children ages five and up. A child chooses a tattoo design to place under the tattoo paper in the case's frame. The design is then traced and colored on the tattoo paper and cut out (scissors not included). After the child's skin is moistened, the tattoo is placed on the skin, pressed or rubbed, then peeled back to reveal the tattoo. A child may also create his/her own designs. The retail package, which is suitable for direct sale without repacking, measures approximately 14 inches in length by 10 inches in height by 2 inches in depth.

ISSUE:

What is the proper classification of "Tattoo Graphix?"

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section and chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The relevant headings and subheadings considered when classifying "Tattoo Graphix" were as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

9503.70 Other toys, put up in sets or outfits, and parts and accessories thereof

The term "toy" is not defined in the HTSUS. However, in understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 FR 35127, 35128 (August 23, 1989).

The ENs to Chapter 95 state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Tattoo Graphix's general physical characteristics, mainly its bright colors and wash off tattoos, indicate that it was principally used as a toy. Its manner of advertisement and display further confirms its use as a toy in such phrases like "Make lots of cool & creepy tattoos!" which appear on the box and in the directions. Moreover, "Tattoo Graphix" was principally used in the same manner as toys; meaning it was principally used to employ imagination and to amuse by allowing a child to create and then wear a temporary tattoo.

The ENs for heading 95.03 provide, in pertinent part, that:

[c]ollections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).

With respect to toy sets, the ENs for subheading 9503.70 provide, in pertinent part, that:

"[s]ets" are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included.

It is Customs position that "toys put up in sets or outfits" (subheading 9503.70) is an eo nomine provision denoting a clearly identifiable class or kind of goods. Consequently, goods may be classified in subheading 9503.70 pursuant to GRI 1, and recourse to the other GRI's, particularly the provisions of GRI 3 relating to sets, is unnecessary. See, e.g., HQ 086407 of March 22, 1990, HQ 086330 of May 14, 1990, and HQ 950700. Such sets typically contain complementary articles intended for use together, rather than individually, to provide amusement. However, there is no requirement that the component of the set only be capable of use together, and the ability of one or more of the components to be used individually does not disqualify classification as a toy set. It is sufficient that the components of the toy set possess a clear nexus which contemplates a use together to amuse.

Because Tattoo Graphix's components combine a variety of complete articles which are intended for use together to occupy the user in a pleasant or enjoyable (i.e., amusing) way, "Tattoo Graphix" meets the requirements for classification as a toy, specifically a toy set. We note that in HQ 957894, we indicated that "Tattoo Graphix" was not classifiable as a toy set because a single component of the set, the carrying case, predominated over the other set components. Further review of the HTSUS and the EN's disclose no basis for imposing such a rule. Inasmuch as any finding of a component's predominance would have no impact on a finding that the components together constitute a collection of articles designed and principally used for amusement, we have determined this rule to be inappropriate.

As a result of finding "Tattoo Graphix" to be a toy properly classified in Chapter 95, classification of the articles elsewhere in the HTSUS is precluded. See Note 2(v) to Chapter 39, Additionally, we have previously noted that the manner in which articles are packaged and sold in combination can convert the articles from their design and use as articles classified elsewhere in the HTSUS to toys (see HQ 950700). Such a conversion occurred with respect to the various components in the set at issue, a fact that was overlooked in HQ 957894.

HOLDING:

"Tattoo Graphix" is classifiable as a toy set under subheading 9503.70.00, HTSUS, as [o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof, with a column one free rate of duty.

HQ 957894 is revoked. In accordance with 19 U.S.C. become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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