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HQ 965195




August 15, 2002

CLA-2 RR:CR:GC 965195 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.91.40

Port Director
U.S. Customs Service
111 W. Huron St., Rm. 603
Buffalo, NY 14202

RE: Protest 0901-01-100030; “Doodle Clings” coloring kit; NAFTA eligibility

Dear Port Director:

This is our decision on Protest 0901-01-100030 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of “Doodle Clings.” The entries were liquidated on November 24, 2000 and the protest timely filed on January 9, 2001.

FACTS:

The subject merchandise is identified as “Doodle Clings,” which is an assortment consisting of a background scene printed onto a sheet of paper, two sheets of pressure sensitive paper stickers and six felt-tipped markers. The background illustration and paper stickers are depictions of popular cartoon movies such as “Scooby Doo,” “How the Grinch Stole Christmas,” and “Toy Story,” and are designed to be colored in with the markers. The stickers are to be placed on the background page to form a scene, or may be placed on various surfaces, such as windows, doors or walls. The adhesive is such that it allows the stickers to be removed and transferred to other surfaces. However, because the stickers are made of paper, the edges are damaged when removing a sticker from a surface.

You determined the product qualified as goods put up in sets for retail sale having no essential character, and thus classified the set according to the heading which occurred last in numerical order among those which equally merit consideration. In this case, the provision for markers, subheading 9608.20.00, HTSUS, occurs last, and you liquidated the goods accordingly.

The protestant contends that the merchandise should be classified in subheading 9503.70.00, HTSUS, as other toys, put up in sets or outfits. Alternatively, the protestant claims that the essential character of the set is the printed pictures, provided for in subheading 4911.91.40, HTSUS. The product is assembled in Canada. The background is of Canadian origin, the stickers are from the United States, and the markers are from Italy. Classification under heading 4911, HTSUS, supports the protestant’s claim for NAFTA treatment under the qualifying rule that requires a change to heading 4901 through 4911 from any other chapter. Finally, the protestant claims that the merchandise is NAFTA qualifying even if the non-originating markers do not undergo the requisite tariff change because the markers are de minimis for NAFTA purposes.

ISSUES:

Whether the “Doodle Clings” coloring set is classifiable as a toy set of heading 9503, HTSUS, or as a GRI 3(b) set.

If it is a GRI 3(b) set, which component imparts the essential character?

Does the non-originating good undergo a tariff change that would qualify the merchandise for NAFTA treatment?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

4911 Other printed matter, including printed pictures and photographs: Other:

4911.91 Pictures, designs and photographs: Printed not over 20 years at the time of importation: Other:

4911.91.40 Other.

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

9503.70.00 Other toys, put up in sets or outfits, and parts and accessories thereof:

9608 Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609:

9608.20.00 Felt tipped and other porous-tipped pens and markers

I. Toy Set of Subeading 9503.70, HTSUS

Protestant contends the merchandise is classifiable according to GRI 1 as a toy set of heading 9503, HTSUS. The Subheading EN for 9503.70, HTSUS, explains that “sets” and “outfits” of the subheading are “[s]ubject to substantiated classification in heading 9503.” That is, to be a set or outfit of subheading 9503.70, HTSUS, the group of articles put up as a set or outfit must first be classifiable as a toy (or other article) of heading 9503, HTSUS.

The term "toy" is not defined in the HTSUS. However, the general EN for Chapter 95 states that the "Chapter covers toys of all kinds whether designed for the amusement of children or adults." The court construes heading 9503 as a "principal use" provision, insofar as it pertains to "toys." See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000).

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.

In HQ 960420, dated July 25, 1997, we ruled that "Color-Me Pals," a set consisting of six washable markers and three stuffed textile items printed with designs, was not classifiable pursuant to GRI 1 as a toy set in heading 9503, HTSUS. We stated that despite the fact that both drawing and coloring are activities capable of providing amusement, not all merchandise that provides amusement is properly classified in a toy provision. We noted that the ENs exclude from heading 9503, HTSUS, certain articles that are used to draw and color, when those items are individually presented. The ENs state, in part, that heading 9503 excludes:

(c) Children's picture, drawing or colouring books of heading 49.03....(h) Crayons and pastels for children's use, of heading 96.09....(ij) Slates and blackboards, of heading 96.10.

Although none of the "Color-Me Pals" components was classifiable in the excluded headings above, the ENs provide an indication that the collection of colored markers and textile items is not put up in a form that suggests intended use as a toy. We found that, like its individual components, the complete article was not principally designed to amuse, but to provide a means to draw and color.

Customs has never considered writing, coloring, drawing or painting to have significant "manipulative play value," for purposes of classification as a toy. Nor does Customs classify the tools for writing, coloring, drawing or painting as toys since those tools are not designed to amuse. See HQ 960279, dated December 9, 1997 (stating above supporting ruling that the educational toy at issue was not classifiable as a toy set for lack of manipulative play value); HQ 085267, dated May 9, 1990 (ruling “Graffiti Gear” was not a toy set for the reasons set forth above in HQ 960420); HQ 963475, dated January 5, 2000 (affirming the rationale in HQ 085267, though modifying the ruling to find that “Graffiti Gear” was a GRI 3(b) set); HQ 962355, dated January 5, 2000 (ruling that four types of coloring sets were not classifiable as toy sets but rather as GRI 3(b) sets classifiable by the article comprising the colored or decoration craft and not the act of drawing). “Doodle Clings” are comparable to the “Color-Me Pals” because both are comprised of articles with some play value that are printed with designs for coloring, and markers to color in the designs. Thus, we find the rationale of HQ 960420 compelling.

Protestant contends that the merchandise is similar to “Tattoo Graphix,” classified in HQ 959232, dated June 2, 1998, in heading 9503, HTSUS. The result of this ruling is inconsistent with the rulings cited above. Moreover, we reviewed that ruling and found it to be incorrect on its face because EN 95.03 exclusionary note (d) excludes “transfers” from classification in heading 9503, HTSUS. Notice was published on July 10, 2002, in the Customs Bulletin, Volume 36, Number 28, proposing to revoke HQ 959232. The final notice will be published in a forthcoming edition of the Customs Bulletin revoking HQ 959232 by HQ 965703, dated August 13, 2002, to reflect Customs long standing position.

We recognize there is some play value in the ability to stick the stickers on various surfaces and move them around, as there was some play value in the textile “Color-Me Pals.” However, the stickers are not actually easily removed, as are other items such as, for example, the plastic Colorforms pieces, because “Doodle Clings” are made of paper whose edges are often destroyed as one tries to remove a sticker. The “Doodle Clings” provide little more than a means for a child to color. We therefore find the principal use of the “Doodle Clings” is coloring. Accordingly, it is not classifiable in heading 9503, HTSUS.

II. GRI 3(b) sets for retail sale and essential character

Protestant alternatively contends that the “Doodle Clings” is a set according to GRI 3(b), and that its essential character is imparted by the printed paper. GRI 3 provides for goods that are prima facie classifiable under two or more headings. Here, the background are classifiable in subheading 4911.91.40, HTSUS, which provides for other printed pictures not printed more than 20 years from importation. The stickers are also classifiable in this subheading, as EN 49.11(10) provides for “Self-adhesive printed stickers designed to be used, for example, for publicity, advertising or mere decoration, e.g. “comic stickers” and “window stickers.” The felt tipped markers are classifiable in subheading 9608.20.00,HTSUS, which provides for felt tipped and other porous-tipped pens and markers.

GRI 3(b) instructs that mixtures, composite goods, and goods put up in sets for retail sale shall be classified by the component which gives them their essential character. The components must either be considered as a set or classified individually. The components constitute “goods put up in sets for retail sale,” if they satisfy the following criteria set forth in EN (X) to GRI 3(b). Goods are classified as sets put up for retail sale if they:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

We find these goods qualify as a set because the articles are classifiable in two headings, are put up to carry out the specific activity of coloring pictures of popular cartoon characters, and are packaged together in a manner suitable for sale directly to user without repacking.

The EN VIII to GRI 3(b), states, “The factor which determines 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.” In HQ 962355, supra, we ruled that Color Me Silk Passepartout (all occasion note cards), Color Me Silk Scarf, Color Me Silk Tie and Color Me Silk Window Decorations craft sets had the essential character of the articles in each that provided the finished product, as opposed to that which provided the means of coloring. Similarly, the background print and the stickers will endure once colored. Moreover, the designs are of popular cartoon characters which provide the main appeal of the merchandise. Moreover, as we discussed with respect to the “Color-Me Pals,” the markers are rendered useless once the fluid has been dispensed. The colored in picture and stickers will endure. Therefore, the printed paper components give the set its essential character.

As we find the set has an essential character, it is unnecessary for you to employ GRI 3(c). Accordingly, the set is classifiable in subheading 4911.91.40, HTSUS, as “Other printed matter, including printed pictures and photographs: other: pictures, designs and photographs: printed not over 20 years at time of importation: other: other”

III. NAFTA

In cases where non-originating materials are used to produce a good in a NAFTA country and in order to qualify for the NAFTA preferential treatment, the non-originating material, under applicable provisions of General Note (GN) 12, HTSUS, and the NAFTA Rules of Origin Regulations (ROR) (19 C.F.R. Part 181, App.) must: undergo a change in tariff classification; undergo an applicable change in tariff classification and meet regional value content requirements; or simply meet regional value content requirements, as applicable to the specific situation. See GN 12(b), HTSUS, and 19 C.F.R. part 181, app. § 4(2)(a) – (c), the former which states, in pertinent part, that:

For purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as “goods originating in the territory of a NAFTA party” only if – . . . .(ii) they have been transformed in the territory of Canada, Mexico, and/or the United States so that – except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note. . . .

Noting that the article at issue is classifiable in heading 4911, HTSUS, the applicable rule is GN 12(t)/49, which states: “A change to headings 4901 through 4911 from any other chapter.”

In the instant case, the non-originating markers, classifiable in heading 9608, HTSUS, undergo the necessary change in tariff classification as set forth in GN 12(t)/49 when assembled into the coloring set, as the set is classifiable in heading 4911, HTSUS. Therefore, “Doodle Clings” qualify for NAFTA preferential treatment.

As the set qualifies for NAFTA treatment under GN 12, HTSUS, by virtue of a tariff change from heading 9608, HTSUS, to heading 4911, HTSUS, it is unnecessary to address protestant’s de minimis argument.

HOLDING:

“Doodle Clings” coloring sets are classified in subheading 4911.91.40, HTSUS, which provides for, “Other printed matter, including printed pictures and photographs: other: pictures designs and photographs: printed not over 20 years at time of importation: other: other”

The protest should be GRANTED as to the alternative classification claimed.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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