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HQ 965295




September 11, 2002

CLA-2 RR:CR:GC 965295 HEF

CATEGORY: CLASSIFICATION

TARIFF NO.: 7616.99.50

Ms. Janet A. Forest
Miller & Chevalier
655 Fifteenth Street, N.W., Suite 900
Washington, DC 20005-5701

RE: Reconsideration of NY H86941; “Paper Punch Art”

Dear Ms. Forest:

This is in response to your letter dated May 8, 2002, requesting reconsideration of NY ruling letter H86941, issued to you on January 24, 2002, on behalf of Pleasant Company, which classified “Paper Punch Art” activity kit under the Harmonized Tariff Schedule of the United States (HTSUS), as other (than certain specified) articles of aluminum in subheading 7616.99.5090, HTSUS. We have reconsidered the classification of the merchandise at issue and have determined that NY H86941 is correct.

FACTS:

The sample submitted is a retail package consisting of a book and four paper punches. The punches make small paper shapes (heart, star, circle and curl). With the assistance of an ordinary hole punch, scissors and glue – not provided, and paper – two sheets of which are provided, a person can make any number of artistic creations.

The forty-eight page book provides instructions on how to use the shaped paper pieces made by the four punches to create flowers, animals, people, scenes and designs. The book suggests that these punches can be used to make cards, bookmarks, gift tags, or to decorate stationery, scrapbooks, Easter eggs, picture frames or any number of items. Two multicolored pages in the back of the book are provided for use in the various art projects.

The subject merchandise is designed and marketed for persons ages eight and up. The description on the back of the product is as follows:

“Here’s everything you need to design stationery, create one-of-a-kind cards and scrapbook pages – or just play with paper shapes! Punch hearts, stars, circles, and swirls from the pretty paper inside, grab the glue and get started!”

ISSUE:

Whether the subject merchandise is classifiable as an article of aluminum under subheading 7616.99.50, HTSUS, a book under subheading 4901.99.00, HTSUS, or as a toy under subheading 9503.70, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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:

Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets:

4901.99.00 Other:

Other articles of aluminum:

Other:

Other.

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.

In your view, the book and paper punches should be classified as toys put up in sets. Heading 9503, HTSUS, 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. See also HQ 962327, dated June 23, 2000, holding that the amusement derived from “The Adventures in Art Travel Pack” is secondary to its functional purpose of drawing; and HQ 959189, dated September 25, 1996, holding that the amusement derived from the “Create-a-Card Stencil Book” is secondary to its functional purpose of making decorations; and HQ 960420, dated July 25, 1997, holding that the amusement derived from “Color-Me Pals” is secondary to their functional purpose of coloring.

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 paper punches and the book shows that the merchandise is not designed to amuse, but rather, it is designed to facilitate some kind of art or design activity. For example, while one may find drawing with chalk to be amusing in a colloquial sense, the chalk was not designed to amuse. The chalk was designed to put words on a blackboard or color a picture. That is its function, not amusement. Furthermore, the description on the back of the product implies that amusement is its secondary function. “Here’s everything you need to design stationery, create one-of-a-kind cards and scrapbook pages – or just play with paper shapes!” The placement of the term ‘play’ in the sentence suggests that amusement is secondary to the functional purposes of the subject merchandise.

The complete kit is not principally designed to amuse, but to provide a means to decorate articles and create art. It is therefore not classifiable pursuant to GRI 1 in heading 9503, HTSUS.

In pertinent part, GRI 2(b) states that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. GRI 3(a) directs that the headings are regarded as equally specific when each refers to part only of the items in a set put up for retail sale. Therefore, to determine whether the article might be classified under one provision, we look to GRI 3(b), which states in pertinent part that:

Goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

According to the criteria set forth in EN (X) to GRI 3(b), the components constitute “goods put up in sets for retail sale,” if they:
consist of at least two different articles whish 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;
consist of different products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

Applying the GRI 3(b) EN criteria, the components of the set are, prima facie, classifiable in different headings. The subject merchandise consists of an instructional book, which would be classified in subheading 4901.99.00, HTSUS, and four aluminum paper punches, each classifiable under subheading 7616.99.50, HTSUS. Thus, the first criterion of EN (X) to GRI 3(b) is satisfied. The merchandise satisfies the second criterion of EN (X) to GRI 3(b) because the constituent goods are put together to meet a particular need or carry out a specific activity. The components are used together in order to carry out the activities of designing stationery and creating art. The kit is packaged in a manner suitable for sale directly to users without repacking, as a hard book cover holds both the soft cover instructional book and the collection of the four paper punches. Under these facts, the articles meet all three criteria of EN (X) to GRI 3(b), and therefore, form a set put up for retail sale.

For all goods that fall under GRI 3(b), EN (VII) states: “In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” EN (VIII) to GRI 3(b) provides:

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.

As to goods put up in sets for retail sale, EN (X) to GRI 3(b) states, in pertinent part, that “classification is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character.” Therefore, we must determine the essential character of the Paper Punch Art.

In this case, it is clear that the aluminum paper punches are the most important articles in designing stationery and creating paper punch art. The punches are the most valuable article in terms of marketability, for the importer, and in terms of utility, for the consumer. The book provides instructions on how to decorate stationery and create designs with the provided aluminum punches. It would be difficult to fashion the designs included in the book without these specific punches. Hence, the book’s appeal to the consumer would significantly decline if the paper punches were not sold with the book. As such, we conclude that the aluminum paper punches impart the "essential character" of the set.

The enjoyment derived from the use of these articles is secondary to the work performed to create a decoration. Therefore the subject merchandise cannot be classified as a toy. Under a GRI 3(b) analysis, the essential character of the kit is the aluminum paper punches, which are described in subheading 7616.99.50, HTSUS, which provides for other articles of aluminum: other: other.

HOLDING:

The subject merchandise is classifiable in subheading 7616.99.50, HTSUS, which provides for, other articles of aluminum: other: other. NY H86941 is affirmed.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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