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HQ 962327




June 23, 2000

CLA-2 RR:CR:GC 962327 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4016.92.0000; 4202.92.4500; 4820.10.2020; 8214.10.0000; 9017.20.8080; 9608.20.0000; 9609.10.0000; 9609.90.8000

Mr. James F. O’Hara
Stein, Shostak, Shostak & O’Hara, P.C.
515 South Figueroa St.
Suite 1200
Los Angeles, CA 90071-3329

RE: Request for Reconsideration of NY B89543

Dear Mr. O’Hara:

This is in response to your letter of October 30, 1998, on behalf of Walter Foster Publishing Company, requesting reconsideration of New York Ruling Letter (NY) B89543, dated September 23, 1997, which classified each item of “The Adventure in Art Travel Pack” individually under the Harmonized Tariff Schedule of the United States (HTSUS). You now seek classification of the merchandise, in its entirety, as a toy of heading 9503, HTSUS, or, in the alternative, as a set where the essential character is provided by the Art Instruction Book. Mr. Bruce Schulman of your office provided additional information at a meeting at Headquarters on September 27, 1999, which was supplemented by a letter dated April 26, 2000.

FACTS:

The instant merchandise is made up of the following items:

1. A 40-page booklet with illustrations and text which instructs a child how to use the other items in the package and suggests ways for “passing the time” while on a trip. 2. A drawing pad of white paper
3. 6 colored markers
4. 12 colored pencils

5. 1 stencil
6. 1 globe-shaped pencil sharpener
7. 1 car-shaped eraser
8. 1 pencil
9. A child-sized clear polyvinyl chloride (PVC) backpack which serves as the retail package for the assortment of items.

ISSUE:

Whether the “Adventure in Art travel pack” is classified as a toy set, as toys put up in sets or outfits, or according to the classification of each of its components?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 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 GRI may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Heading 9503 covers other toys. Although the term "toy," in general, is not specifically defined in the tariff, the ENs to Chapter 95, HTSUS, indicate that, "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUS.

If this article can be shown to be designed principally for the amusement of children or adults, it would qualify as an article of Chapter 95. Upon examination of the individual articles contained in the collection, no single article is a toy in its own right. The car-shaped pencil eraser comes close to being a toy; however, its principal use can be understood to be an eraser as the art instruction book indicates. Likewise, the globe-pencil sharpener is principally used to sharpen pencils. These, like the rest of the articles in the collection, are designed for presenting a collection of art supplies and equipment that is conveniently transported from place to place.

In the tariff context, “amuse” is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. An examination of the Adventure in Art Travel Pack shows that none of the other categories of merchandise is designed to amuse, but rather they are designed to facilitate some kind of art or drawing activity. For example, while one may find drawing with colored pencils to be amusing in a colloquial sense, the pencils were not designed to amuse. They were designed to color a picture, among other things. That is their function, not amusement. The same type of analysis applies to the rest of the art supplies. The eraser and the pencil sharpener are mere adjuncts to the art supplies, enabling mistaken marks to be eliminated from the pad of paper or a dull point to be made useful again.

In the most recent ruling cited in support of the claim of classification as “Toys, put up in sets or outfits” in subheading 9503.70, HTSUS, the quoted portion speaks to the point that some components may be used independently of the rest in a 9503.70 set without disqualifying the classification. However, integral to that concept is that the articles ”typically” are used together to provide amusement but also that “[i]t is sufficient that the components of the toy set possess a clear nexus which contemplates a use together to amuse.” HQ 959232, issued June 2, 1998 (emphasis supplied). Of the articles under consideration here, all but the backpack and the instruction book function as art supplies and are in no way connected to each other. There is no nexus, clear or otherwise, between the colored markers and the eraser or between the stencil and the pencil sharpener or the colored pencils. The goods may be used individually or in combination with others, but altogether they merely constitute a collection of art supplies in a carrying case.

The ENs to subheading 9503 indicate that “for the purpose of this subheading: ...‘Sets’ 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.” The product under consideration here is a collection of art and drawing materials. There is nothing in how the goods are put up together to make the goods more than the sum of their parts. Consequently, they do not constitute toys put up in sets. The goods, whether they are the colored pencils, colored markers, or the pencil, will be used exactly the same way when imported together as they would when they were imported alone. In other words, there is nothing that creates a set out of the disparate objects.

As to the question of whether these goods constitute a “GRI 3(b)” set, they do not meet the requirement stated in the EN X(b) to GRI 3(b) in that they do not “consist of products or articles put up together to meet a particular need or carry out a specific activity.” We recognize a general activity of instructing children how to use art equipment; however, there is no specific activity contemplated or apparent here. Even the art instruction book outlines several different media and techniques, and how to bring them to realization, e.g., mixing colors, the use of geometric shapes to design a picture, black backgrounds, color gradations, and shading. These things do not represent a single activity. Moreover, the backpack, which is not specialy shaped or fitted for the contents, would have a variety of uses that are independent of the contents, such as permitting the child to transport toys and other personal possessions from place to place.

In consequence of the above-described goods not being put up in a form clearly indicating their use as toys, nor forming a set put up for retail sale, they must be separately classified, as follows:

The applicable subheading for the eraser, if made of rubber, will be 4016.92.00, HTSUS, which provides for “Other articles of vulcanized rubber, other than hard rubber: Other: Erasers.”

The applicable subheading for the backpack will be 4202.92.45, HTSUS, which provides for “Trunks,...and similar containers; traveling bags, toiletry bags, knapsacks and backpacks,...and similar containers,...of sheeting of plastics, ...or wholly or mainly covered with such materials...: Other, With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.”

The applicable subheading for the pad of paper will be 4820.10.2020, HTSUS, which provides for “Registers,...memorandum pads,...of paper or paperboard: Registers,...memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles, Memorandum pads, letter pads and similar articles.”

The applicable subheading for the art instruction book will be 4901.99.0060, HTSUS, which provides for “Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets: Other: Other, Other: Art and pictorial books: Valued under $5 each.”

The applicable subheading for the pencil sharpener will be 8214.10.00, HTSUS, which provides for “Other articles of cutlery...; base metal parts thereof: Paper knives, letter openers, erasing knives, pencil sharpeners (nonmechanical) and blades and other parts thereof.”

The applicable subheading for the stencil will be 9017.20.8080, HTSUS, which provides for “Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); ..., not specified or included elsewhere in this chapter; parts and accessories thereof: Other drawing, marking-out or mathematical calculating instruments: Other.”

The applicable subheading for the markers will be 9608.20.0000, HTSUS, which provides for “Ball point pens; felt tipped and other porous-tipped pens and markers;...: Felt tipped and other porous-tipped pens and markers.”

The applicable subheading for the colored and lead pencils will be 9609.10.0000, HTSUS, which provides for “Pencils..., crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks: Pencils and crayons, with leads encased in a rigid sheath.”

HOLDING:

NY B89543 is AFFIRMED.

Sincerely,

John Durant, Director
Commercial Rulings Division

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