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HQ 965350




July 10, 2002

CLA-2 RR:CR:GC 965350 AML

CATEGORY: CLASSIFICATION

TARIFF Nos.: 4905.10.00

Ms. Marilyn-Joy Cerny
Cerny Associates, P.C.
301 Fields Lane
P.O. Box 102
Brewster, NY 10509

RE: Star Theater™ Home Planetariums

Dear Ms. Cerny:

This is in reply to your letter dated December 4, 2001, on behalf of Fingerhut Corporation, in which you requested a ruling regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the “Star Theater™ Home Planetarium” (Fingerhut Model # RM749)(hereinafter “Star Theater™”). You further request reconsideration of New York Ruling Letter (NY) C84139, dated February 11, 1998, which you claim classified a similar article under subheading 4905.10.00, HTSUS. Because the file for that ruling was destroyed on September 11, 2001, we cannot ascertain whether the goods are similar. Accordingly, we are unable to reconsider NY C84139. Photocopies of pages from the Star Theater™ website were provided for our consideration.

FACTS:

The merchandise consists of a planetarium which features an acrylic sphere that is lighted with a halogen lamp and projects hundreds of stars, planets and constellations (together with their names) on walls and ceilings of standard-sized rooms. It is accurate to the season, month, date and hour. The merchandise is comprised of the sphere that projects the images; a stand or base that holds the sphere at the proper angle and stores the accessories; a 50-minute guided audio tour; and an illustrated activity guide with tables and planet positions. The sphere’s internal light consists of a miniature lamp that requires batteries (not included) to operate. Use is recommended for children ages 8 and up.

ISSUE:

Whether the subject merchandise is properly classifiable under heading 4905, HTSUS, which provides for maps and hydrographic or similar charts of all kinds, including atlases, wall maps, topographical plans and globes, printed: globes; or under heading 9503, HTSUS, which provides for toys?

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.

The HTSUS provisions under consideration are as follows:

4901 Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets:
4901.99.00 Other.
4901.99.00.92 Containing 5 or more pages each, but not more than 48 pages each. 4905 Maps and hydrographic or similar charts of all kinds, including atlases, wall maps, topographical plans and globes, printed: 4905.10.00 Globes.
8524 Records, tapes and other recorded media for sound or other similarly recorded phenomena, including matrices and masters for the production of records, but excluding products of chapter 37:
Other magnetic tapes:
8524.51 Of a width not exceeding 4 mm:
8524.51.30 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.

Based on the information provided, the Star Theater™ is imported as a set that consists of the sphere that projects the images; a stand or base that holds the sphere at the proper angle and stores the accessories; a 50-minute guided audio tour; and an illustrated activity guide with tables and planet positions. Thus, the article is prima facie classifiable under the four headings set forth above.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Citing Headquarters Ruling Letter (HQ) 962971, dated September 11, 2000, you claim that the Star Theater™ is classifiable under heading 9503, HTSUS, which 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.

The ENs for heading 9503 provide, in pertinent part, that the heading covers “(A) [a]ll toys not included in headings 95.01 and 95.02” and specifically that “[t]hese include”:

(17) [e]ducational toys (e.g., toy chemistry, printing, sewing and knitting sets). [c]ertain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited "use"; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.

[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).

[c]ertain of the above articles (toy arms, tools, gardening sets, tin soldiers, etc.) are often put up in sets.

The ENs to subheading 9503.70, provides, in pertinent part, that:

Subject to substantiated classification in heading 95.03 and for the purpose of this subheading:

(i) “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.

(ii) “Outfits” are two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or profession.

If these goods can be shown to be designed principally for the amusement of children or adults, they may qualify as a set of heading 9503, HTSUS. Upon examination of the individual articles contained in the Star Theater™ Planetarium, none of the articles is a toy in its own right. The globe that projects lighted images of constellations onto the walls and ceiling of a small room does not amuse; any amusement would be a fugitive use of the article, not unlike a child being amused by a flashlight. Likewise, neither the audiocassette nor the activity book provide amusement. While we note that the EN references to collections of articles and outfits allow some collections to be classified as toys, i.e., “two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or profession” (see the EN to subheading 9503.70, supra), the fundamental characteristic for classification under heading 9503 as a toy - that the goods provide amusement - is not present.

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. The Star Theater™ is not designed to amuse, but rather is designed to facilitate some kind of educational activity.

The Star Theater™ is readily distinguishable from the Stargazer classified under heading 9503 in HQ 962971. The Stargazer provided interactive, manipulative play and amusement to the child and adult utilizing it. The Stargazer was assembled in a backpack, facilitating outdoor use, movement and emulative play. The adult could demonstrate and assist the child with the articles (e.g., the plastic telescope, flashlight and “planisphere”) in the Stargazer. The Star Theater™ is designed for sedentary, indoor use. While the article provides interaction insofar as the user observes and learns constellations, the article cannot be said to amuse. An adult and child sit in a darkened room and observe constellations while either listening to the instructive audiocassette or referring to the activity book. The adult (who presumably has more celestial knowledge than the child) instructs the child. While the educational aspect of the articles is readily apparent, the required characteristic that the articles amuse adults or children is glaringly absent.

In a recent ruling cited in support of the claim of classification as “[t]oys, 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 subheading 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 added). Because the disparate components do not, used collectively, amuse, the articles cannot be classified under heading 9503, HTSUS; nor can the composite article be classified at GRI 1 (cf. the Stargazer in HQ 962971: “we [did] not reach the question of whether [those] goods constitute[d] a “GRI 3(b)” set because classification [was] resolved at GRI 1 by way of GRI 6.”).

The articles, upon importation, are prima facie classifiable in multiple headings; the individual articles comprising the set are separately classifiable. Therefore, classification must be made pursuant to GRIs 2(b) and 3. GRI 2(b) provides in pertinent part that “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3(b) provides, 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.”

The components of the Star Theater™ comprise goods put up in sets for retail sale. See GRI 3(b) EN (IX). See also, the Informed Compliance Publication (ICP) entitled “What Every Member of the Trade Community Should Know About: Classification of Sets under the HTS” (September, 1999) and EN X to GRI 3(b):

For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie classifiable in different headings (the booklet under heading 4901, the globe under heading 4905, and the audiocassette under heading 8524, HTSUS);

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity (learning fundamental astronomy); 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)(in a single container).

As regards the essential character of the goods, we note several decisions by the Court of International Trade (CIT) which addressed “essential character” for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. The Court examined the role of the constituent materials in relation to the use of the goods and found that, although the relative value of the textile curtain was greater than that of the plastic liner, and that although the textile curtain also served protective, privacy and decorative functions, because of the fact that the plastic liner served the indispensable function of keeping water inside the shower, the plastic liner imparted the essential character upon the set. See also Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co. v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995), in which the Court also looked to the role of the constituent material in relation to the use of the goods to determine essential character.

The ENs to heading 4905, HTSUS, provide in pertinent part, as follows:

The heading includes, inter alia :

Geographical maps (including sectors for globes), road maps, wall maps, atlases, hydrographic, geographical and astronomical charts, geological surveys, topographical plans (e.g., plans of towns or districts).

It also covers printed globes with internal lighting, provided they are not merely toys.

We find that the globe that projects the constellations onto the walls and ceiling imparts the essential character of the set. The audiocassette and the activity book are designed to explain the images projected by the globe; thus their function is ancillary to that of the globe. Therefore, the merchandise at issue should be classified under heading 4905, HTSUS, which provides for, inter alia, globes.

HOLDING:

At GRI 3(b), the Star Theater™ Home Planetariums at issue are classified in subheading 4905.10.00, HTSUS, which provides for maps and hydrographic or similar charts of all kinds, including atlases, wall maps, topographical plans and globes, printed: globes.

Sincerely,

Myles B. Harmon, Acting Director

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