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NY L83433




March 30, 2005

CLA-2-84:RR:NC:1:104 L83433

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.9897

Mr. David S. Levy
Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP
399 Park Avenue, 25th floor
New York, New York 10022-4877

RE: The tariff classification of a pencil decorating set from China

Dear Mr. Levy:

In your letter dated March 18, 2005 on behalf of Peachtree Playthings of Marietta, Georgia you requested a tariff classification ruling.

A sample, packaging layout and instructions have been provided for the “My Style Personalized Pencil Decorator” which you describe as a kit designed to allow children to decorate pencils with various stickers. (The sample will be returned per your request.) The kit consists of a pencil wrapping device which uses a roller to set stickers onto pencils, a pencil sharpener, 12 pencils and various stickers including “pencil wraps”, each of which will cover an entire pencil. The items are imported and sold packaged in retail packaging which you suggest indicates their use as toys for the amusement of children. The suggested age for use of this item is five years and up.

It is your position that the merchandise is properly classifiable under HTS subheading 9503.70.0000, which provides for other toys, put up in sets or outfits, and parts and accessories thereof. In support of your position, you cite the Explanatory Notes to Heading 9503 and HQ rulings 957829 of July 3, 1996 and 966484 of August 12, 2003. Should Customs determine that the pencil decorator is not a toy, you suggest classification of the kit as set with the essential character being imparted by the machine. This would result in classification under HTS subheading 8479.89.9897 as machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter.

The decorator “machine”, which is primarily made of plastic, somewhat resembles a toy typewriter without the keyboard. The machine features a pencil guide, stage, stage guide, knob, set lever and roller. It measures approximately 9 ½” L x 3 ½” W x 2 7/8” H with the pencil guide folded down. We agree that this item would impart the essential character to the set.

The claim is made that the goods are put up in a manner indicating their use as toys. That is not the case. It is common practice to package pencils, erasers and pencil sharpeners together. The presence of the Pencil Designer appliance does not convert this product into a toy. There is nothing about the combination of goods which is not common in the retail trade, or which converts these goods from their functional use as writing supplies for young children.

The Explanatory Note for HTS subheading 9503.70. is cited. But that note requires that the good first be a toy of 9503. To be a toy, the good must be designed to amuse. However, everything in this retail package will be used as intended. The pencils will be used to write, the pencil sharpener will be used to sharpen pencils. The stickers and Pencil Designer appliance will be used to place the stickers on the pencils. The only unique aspect of this retail package is that the owner will be able to personalize the pencils by using the stickers and appliance provided.

The next claim is that placing stickers onto something is somehow amusing. Stickers are not toys in their own right and are generally classified as printed matter. The act of placing stickers on anything has not been considered play activity. Adding an appliance, which assists in the application of the stickers does not turn the activity into play.

The final claim is that the appliance is useless and therefore a toy. The claim is that the child can role-play “using a grown up machine.” Given that the age group this item is marketed to, five years and up, it is unlikely the child would know if there is a grown-up version of this appliance. There is activity here, but there is no role-play. All child activity is not play, and all the tools of child activity are not toys.

No item in the “My Style Personalized Pencil Decorator” retail package is a toy. The combination of items does not convert the product into an educational or role-play toy. The “Decorator” is a GRI 3(b) set under Heading 8479.

The applicable subheading for the “My Style Personalized Pencil Decorator” will be 8479.89.9897, Harmonized Tariff Schedule of the United States (HTS), which provides for machines and mechanical appliances having individual functions, not specified or included elsewhere (in Chapter 84): other machines and mechanical appliances: other: other: other: other. The rate of duty will be 2.5 percent.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Robert Losche at 646-733-3011.

Sincerely,

Robert B. Swierupski
Director,

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