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HQ 960067




March 24, 1998

CLA-2 RR:CR:GC 960067 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.0045

Ms. Regina M. Bernard, Imports Supervisor Hasbro, Inc.
1027 Newport Avenue
P.O. Box 1059
Pawtucket, Rhode Island 02862-1059

RE: 3-D Spirograph

Dear Ms. Bernard:

This is in response to your November 5, 1996, letter, with enclosed sample, to the Customs National Commodity Specialists Division, New York, requesting a classification ruling for an article known as a "3-D Spirograph Design Toy" under the Harmonized Tariff Schedule of the United States Annotated (HTSUS). We regret the delay in responding.

FACTS:

The article identified as # 67012 "3-D Spirograph" contains a set of 13 neon-colored ridged serial gears, 2 gear rings, 1 square ring, 1 propeller gear, 1 ring holder, and a storage tray all of the foregoing of plastic, 2 ball point pens, 10 sheets of paper, a pair of "3-D" eye glasses made of paper and plastic, and a set of printed instructions. A user pushes a sheet of paper onto the pegs of the ring holder. Then the user selects a ring and the ring is placed on the holder's pegs over the piece of paper. The user then selects a gear and places it inside the ring so that the teeth on the gear and ring engage. The user then places a pen tip in one of the gear's holes. With one hand, the user holds the ring down and with the other holds the pen upright and moves the gear around the inside of the ring. When the paper is viewed with the 3-D glasses, the tracings appear to be three dimensional.

The instructions describe the article, in pertinent part, as follows "...3-D Spirograph, the exciting design toy that lets you turn your Spirograph patterns into bright, vibrant 3-D images!" "With your imagination and the parts in this set you can make an endless number of 3-D Spriograph designs! For your own unique patterns, place the tip of your pen...[b]elow are just a few of the designs that you can create." The box is marked "ages 5 & up" and carries a "warning: Choking Hazard-Small parts. Not for children under 3 years."

ISSUE:

What is the proper classification of the "3-D Spirograph?"

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 the "3-D Spirograph" were as follows:

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

4802 Uncoated paper and paperboard, of a kind used for writing, printing or other graphic purposes, and punch card stock and punch tape paper, in rolls or sheets, other than paper of heading 4801 or 4803; handmade paper and paperboard:

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. This view has been articulated by this Office in a number of prior rulings, including HRL 950700 of August 23, 1993.

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., HRL 086407 of March 22, 1990, HRL 086330 of May 14, 1990, and HRL 950700 of August 23, 1993. Such sets typically contain complementary articles intended for use together, rather than individually, to provide amusement. It is sufficient that the components of the toy set possess a clear nexus which contemplates a use together to amuse. The "3-D Spirograph" combines three complete articles, plastic gears, paper and 3-D glasses in a retail package. These articles are intended for use together to occupy the user in a pleasant or enjoyable (i.e., amusing) way, allowing the user to create a variety of different designs which then can be viewed in three dimensional form. Accordingly, the "3-D Spirograph" meets the requirements for classification as toy sets.

As a result of finding the "3-D Spirograph" to be a toy set properly classified in Chapter 95, classification of the article elsewhere in the HTSUS is precluded. For classification of similar articles see HRL 957131 dated February 27, 1995, which classified as a toy set an article known as "Spiral Art," which consisted of three kaleidoscope stencils and their holder, felt tipped watercolor markers, sheets of drawing paper and a pencil. See also HRL 086330, issued May 14, 1990, which held that a retail package identified as "Twirlo Graph" (similar to the "spiral art" set) consisting of stencils, a drawing ring, ball point pens, and a writing pad, was a toy set classified in subheading 9503.70.8000, HTSUS, and HRL 958361 dated July 3, 1996, in which "Easy Spiro," consisting of multi-colored plastic wheels and pen insets containing different colored ink which when moved over paper created different decorative patterns or borders, was also classified as a toy under subheading 9503.90.0030, HTSUS, which provided for other toys.

HOLDING:

The "3-D Spirograph" is classified under subheading 9503.70.00, HTSUS, the provision for "[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. The applicable 1998 duty rate is free.

Sincerely,

John Durant, Director
Commercial Rulings Division

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