United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1999 HQ Rulings > HQ 958568 - HQ 959573 > HQ 959558

Previous Ruling Next Ruling
HQ 959558




September 14, 1998

CLA-2 RR:TC:GC 959558 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0030; 9504.90.9080; 4911.99.8000

Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-96-100356; Spiderman and Wolverine Maze Candy , Bubble Gum Comic and Bubble Fax

Dear Port Director:

This is our decision on Protest 2704-96-100356, concerning your action in classifying and assessing duty on articles identified as Spiderman and Wolverine Maze Candy , Bubble Gum Comic and Bubble Fax , under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the Wolverine Maze Candy and Spiderman Bubble Fax, as well as literature from the protestant's catalog containing a picture and descriptions of the subject articles were submitted for our review. In preparing this decision consideration was also given to arguments presented by counsel for the protestant in an additional submission made June 28, 1998. We regret the delay in responding.

FACTS:

Three different articles, Spiderman and Wolverine Maze Candy , Bubble Gum Comic and Bubble Fax , are the subject of this protest. All three articles are bi-level lidded cases which hold chewing gum. They measure approximately 4 inches long by 3 inches wide by 1« inches deep.

The top level of the Maze Candy is a plastic three-dimensional maze. The bottom level is a storage unit for gum. The Maze Candy operates by dispensing a piece of tiny chicklet-like gum through a gated gear at the top of the maze. The user then maneuvers the released piece through the maze to an opening at the bottom.

The bottom level of the Bubble Fax stores rectangular strips of gum under a removable smooth plastic slab. The top level consists of a plastic slab with a raised "Super Hero" on each side. The article operates by placing a piece of gum on the smooth slab and the closing the top level and pressing, thereby embossing the outline of the stenciled character onto the gum. The gum and raised stenciled slab are then flipped over to repeat the process with a new "Super Hero."

Finally, the lower level of the Bubble Comic stores gum while the upper level opens to reveal an accordion folded comic strip which appears to be attached at each end to the plastic outside cover and compartment divider.

Protestant asserts that all three articles are classifiable under heading 9503, HTSUS, as toys. The entry, made in 1995, was liquidated on November 13, 1995, and a protest was timely filed on January 30, 1996. The headings under consideration are:

3923 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics

3924 Tableware, kitchenware, other household articles and toilet articles of plastics

4911 Other printed matter, including printed pictures and photographs

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

9504 Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof
ISSUE:

Whether the Spiderman and Wolverine Maze Candy , Bubble Gum Comic and Bubble Fax are classifiable as containers, toys, games, printed matter or other plastic articles.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the Harmonized System is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or 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 GRIs may then be applied.

Note 2(v) of Chapter 39, HTSUS, states that: "[t]his chapter does not cover:...[a]rticles of chapter 95 (for example, toys, games, sports equipment.)." Therefore, we must first determine whether the Maze Candy, Bubble Gum Comic and Bubble Fax are classifiable as toys or games for tariff purposes. If so, they are excluded from classification in headings 3923 and 3924, HTSUS, by operation of Note 2(v) to Chapter 39.

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. 89-80, 54 Fed. Reg. 35127 (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.

The physical characteristics of the Spiderman Bubble Fax indicate that it is classifiable as a toy. While it has a container component, it also has a significant portion which has manipulative play value. In addition to holding gum, the Bubble Fax allows a user to create "Super Hero" character impressions on their gum. Moreover, the container is not the usual one used for packing and conveying chewing gum to users. Furthermore, the subject article with gum retails for approximately $3.00; a price much higher than that paid for gum in its usual container. Such a high price suggests that these articles are purchased for their amusing features, namely the maze portion and embossing portion. These portions of the articles are also the ones which depict the named "Super Hero's," further indicating their amusing nature. The Spiderman Bubble Fax is classifiable under subheading 9503.90.0030, 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: [o]ther: [o]ther: [o]ther toys (except models), not having a spring mechanism.

The term "game" as used in the tariff has come to refer to a competition or contest for recreation or amusement between two or more players or between one person and the game itself which involves skill, chance, endurance or any combination of these elements and which is played according to rules either expressed or self-evident, with a method or system of scoring and the object of winning as a goal. See, Mego Corp. v. United States, 62 CCPA 14, CAD 1137 (1971).

We are of the opinion that primary purpose of the Wolverine Maze Candy is a contest or competition against oneself with a win/loose objective. The Wolverine Maze Candy provides for individual use, involves the skill of negotiating an object through a maze, the purpose of which is to "win" the piece of gum by manipulating through the maze to the exit. As the Wolverine Maze Candy falls within the scope of the tariff term "game", it is described by heading 9504, HTSUS, specifically subheading 9504.90.9080, HTSUS, which provides for [a]rticles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof: [o]ther:[o]ther: [o]ther. As a result of finding the Spiderman and Wolverine Maze Candy and the Bubble Fax are properly classified in Chapter 95, classification elsewhere in the HTSUS is precluded.

The Bubble Gum Comic too, is not a usual container for packing and conveying of gum and retails for approximately $3.00, a price much higher than that paid for gum in its usual container. However its portion which depicts the named "Super Hero" has no manipulative play value nor is it a game for tariff purposes. Rather, it is a comic book. As such, it cannot be classified as a toy or game.

All three remaining headings, 3924, 3926 and 4911 describe the Bubble Gum Comic. Therefore, it is not classifiable according to GRI 1. GRI 3(b) states, in pertinent part, that mixtures, composite goods consisting of different materials or made up of different components, and 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, insofar as this criterion is applicable. EN IX to GRI 3(b) , pg. 4, states, in pertinent part, that:

(IX) For purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

The Bubble Gum Comic has two components, a plastic container and a comic, attached to one another, therefore it is a composite good. Accordingly, we must determine whether the comic or plastic container provides the essential character of the composite good.

In general, essential character has been construed to mean that attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, EN (VIII) to GRI 3(b), at page 4, states that the factors which help determine 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.

We are of the opinion that the comic book provides the essential character of the Bubble Gum Comic. It alone contains the "Super Hero" theme, a theme heavily marketed in the article's advertizing. Furthermore, this is not the usual container for conveying gum. If the user were purchasing the article for the gum and its container, they could do so for a lower price and in a smaller container. As the comic is the attribute which distinguishes the article, the Bubble Gum Comic is classifiable under subheading 4911.99.8000, HTSUS, which provides for [o]ther printed matter, including printed pictures and photographs:[o]ther:[o]ther: [o]ther.

HOLDING:

The Spiderman Bubble Fax is classifiable under subheading 9503.90.0030, HTSUS, as "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: [o]ther: [o]ther: [o]ther toys (except models), not having a spring mechanism," with a 1995 general column one free duty rate.

The Wolverine Maze Candy is classifiable under subheading 9504.90.9080, HTSUS, as [a]rticles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof: [o]ther:[o]ther: [o]ther, with a 1995 free column one duty rate.

The Bubble Gum Comic is classifiable under subheading 4911.99.8000, HTSUS, which provides for [o]ther printed matter, including printed pictures and photographs:[o]ther:[o]ther: [o]ther with a 1995 column one rate of duty of 4.4 percent ad valorem.

The protest should be DENIED, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division


Previous Ruling Next Ruling

See also: