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HQ 967797

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February 28, 2006

CLA-2-RR:CTF:TCM 967797 IOR

CATEGORY: CLASSIFICATION

Tariff No. 3926.90.9880

Kevin Maher
C-Air Customhouse Brokers
181 South Franklin Avenue
Valley Stream, NY 11581

RE: Fashion Maker; Rubbing Templates; NY J88507; revoked

Dear Mr. Maher:

On October 6, 2003, the Director, National Commodity Specialist Division issued to you, on behalf of RoseArt, New York Ruling Letter (NY) J88507, classifying a “Fashion Maker” under the Harmonized Tariff Schedule of the United States (HTSUS). The “Fashion Maker,” which included plastic rubbing templates, was classified as a toy set under subheading 9503.70.00, HTSUS. We have reconsidered NY J88507 and have determined the classification of the “Fashion Maker” to be incorrect.

Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J88507 was published on November 16, 2005, in the Customs Bulletin, Volume 39, Number 47. One comment was received in response to that notice, opposing the proposed revocation. Relevant portions of the comment are discussed in the Law and Analysis section of this ruling.

FACTS:

In NY J88507, the “Fashion Maker,” identified as style number 4740, was
described as follows:

The toy set consists of 12 plastic plates with 24 images, 14 colored pencils, 1 crayon with holder, and paper packaged together in a cardboard box with a window display. To use, a child 5 years of age and older places a sheet of paper over a plastic plate. The plate depicts an image of a face, a torso, arms, legs, a handbag, a flower, etc. The plate is then placed inside the plastic frame, which holds the paper in place so the paper does not move as the child rubs the paper with the crayon. This rubbing action transfers the image on the plate to the paper. By mixing and matching the various plates, a child can create dozens of figures wearing various designs. The pencils are used to add additional colors to the finished design. All of the articles work together for the use of a child in imaginative role-play as a fashion designer "creating" dozens of their own fashions.

As is apparent from the description above, the “Fashion Maker” also includes a plastic frame.

ISSUE:

What is the classification of the “Fashion Maker” under the HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.98 Other..

9017 Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof:
9017.20 Other drawing, marking-out or mathematical calculating instruments:
9017.20.80 Other

9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
9503.90.00 Other..

The issue before us is whether the “Fashion Maker” is classifiable within heading 9503, HTSUS as other toys, or whether it is classifiable as a set elsewhere. Articles of Chapter 95, HTSUS, are not classifiable in Chapter 39, or 90, HTSUS. See Note 2(v), Chapter 39 and Note 1(k), Chapter 90. In NY J88507 we concluded that the articles “work together for the use of a child in imaginative role-play as a fashion designer,” and classified it as “[o]ther toys, put up in sets or outfits, and parts and accessories thereof,” in subheading 9503.70, HTSUS.

The term "toy" is not defined in the HTSUS. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

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 U.S. Court of International Trade (CIT) construes heading 9503, HTSUS, 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). Thus, to be a toy, the "character of amusement involved [is] that derived from an item which is essentially a plaything." Wilson's Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967). It has been CBP’s position that the amusement requirement means that toys should be designed and used principally for amusement.

For articles governed by 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.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the CIT has provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum).

For articles that are both amusing and functional, we look to Ideal Toy Corp. v United States, 78 Cust. Ct. 28 (1977), in which the court stated that "when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement." Drawing and coloring are activities capable of providing amusement, but the ENs exclude from heading 9503, HTSUS, many articles that are used in drawing, coloring and other art activities. EN 95.03 states, in part, that heading 9503 excludes:

(a) Paints put up for children’s use (heading 32.13).

(b) Modelling pastes put up for children’s amusement (heading 34.07).

(c) Children's picture, drawing or colouring books of heading 49.03.

(d) Transfers (heading 49.08).
. . .

(h) Crayons and pastels for children's use, of heading 96.09.

(ij) Slates and blackboards, of heading 96.10.

These exclusions provide that articles and sets comprised of articles used for drawing or coloring are not classifiable as toys or as toy sets (classified according to GRI 1 under subheading 9503.70.00). The fact that the drafters of the Harmonized System upon which the U.S. tariff schedule is based provided for the above-listed articles eo nomine in headings other than heading 9503, HTSUS, evinces an intent by the drafters that they not be considered toys. To that end, CBP has long construed the scope of heading 9503, HTSUS, to exclude such articles and sets. In HQ 085267, dated May 9, 1990, CBP found that, with respect to the above items listed in the ENs, "[a]lthough they may tend to amuse those who use them, such amusement is incidental to their primary purpose." That is, not all merchandise that provides amusement is properly classified in a toy provision. The listed items were further described as having primarily a drawing and craft function.

CBP has never considered writing, coloring, drawing or painting to have significant "manipulative play value," for purposes of classification as a toy. Nor does CBP classify the tools for writing, coloring, drawing or painting as toys since those tools are not designed to amuse. See HQ 966198, dated July 21, 2003 (ruling that a plastic stencil depicting a farm and farm animals is not a toy but a stencil designed to create tracings of a farm and farm animals); HQ 959189, dated September 25, 1996 (plastic stencils were designed primarily to make decorations, not to provide amusement); HQ 958063, dated February 13, 1996 (classifying a battery-operated drawing pad with pen for children as a drawing instrument of heading 9017 and not a toy because it was designed to facilitate drawing, not to amuse); HQ 953922, dated November 17, 1993 (classifying the "Video Painter" and "Design Studio Accessory Kit," which included several stencils under heading 9017 for the same reason); HQ 962327, dated June 23, 2000, (articles in an art activity set were not put up in a form indicating their use as toys and thus the set was not classifiable as a toy set at GRI 1, and the individual items were not classifiable as toys, including a stencil); HQ 958152, dated April 2, 1996 (classifying light-up desk with designs for tracing as a drawing instrument) and HQ 958805, dated February 8, 1996 (classifying "Trace N' Color" in heading 9017).

The commenter asserts that the above statement that “CBP has never considered writing, coloring, drawing or painting to have significant ‘manipulative play value,’ for purposes of classification as a toy,” is opposed to, and refuted by language in HQ 086407, dated March 22, 1990. HQ 086407 was affirmed by HQ 087441, dated January 8, 1991. In HQ 086407 and HQ 087441, the articles being classified were an “Arts, Crafts & Activities” kit, and a string art kit, which were classified under subheading 9503.70.80, HTSUS. The kits in issue in HQ 086407 and HQ 087441, were not limited to writing, coloring, drawing, or painting related items, but included, among other items, double sided game boards, playing pieces and dice, string art materials, as well as paints, brushes and an instruction manual, in one kit and string art with no writing, coloring, drawing or painting related items in the other kit. As the kits included a variety of articles not related to writing, coloring, drawing, or painting, the decision does not stand for the proposition that writing, coloring, drawing or painting, by themselves, have significant play value for purposes of classification as a toy. Although we do not find HQ 086407 and HQ 087441 dispositive with regard to the classification of plastic rubbing templates, or other items packaged with plastic rubbing templates, we do intend to evaluate them in the near future to determine whether the items at issue were correctly classified under heading 9503 as “other toys.”

The commenter asserts that the EN exclusions do not apply to the rubbing templates, as they are not specifically identified in the exclusions. The EN cannot limit the scope of a heading but does provide guidance. It is CBP’s position that from the EN, it may be inferred that other implements designed to facilitate drawing, and not amusement, are also excluded. See, HQ 958063, dated February 13, 1996.

The activity performed with the rubbing template is similar to that performed with a stencil or by tracing. It involves following a design pattern to create a design which can be then colored.

The amusement derived from art-related activities is secondary to utility because those articles and sets used for drawing, coloring and other art-related activities are not "essentially playthings." The articles are not designed to amuse, but “rather are designed to facilitate some kind of art or drawing activity.” See HQ 962327, supra. In certain cases, combinations of articles not ordinarily classifiable as toys, but intended primarily for use in role play, have been determined to be classifiable as toys in heading 9503, HTSUS. See e.g., HQ 958344, dated October 2, 1997. Where the set is entirely composed of articles which are excluded from classification in heading 9503, HTSUS, as articles used for art-related activities, and the art-related activity is the primary purpose of the set, as in the instant case, we do not find the item to be primarily for role play.

For purposes of determining whether the ”Fashion Maker” falls within the class or kind of merchandise as toys, we apply the Carborundum factors as follows:

The general physical characteristics of the “Fashion Maker” is a plastic rubbing template with a raised design to be placed under paper in a frame and used for creating designs with crayons or pencils.

The expectation of the ultimate purchaser is to create the designs on the rubbing templates by using crayons and pencils.

We do not have information regarding the channels of trade.

We do not have any information regarding the environment of sale (accompanying accessories, manner of advertisement and display).

The use is not the same as toys because the use is creating designs by use of the rubbing template.

The economic practicality of using the articles for the creation of designs is clear, and it is unlikely any other use is recognized by the trade.

The foregoing application of the Carborundum criteria indicates that the “Fashion Maker” is not a good of a kind designed for amusement, and therefore the principal use of the “Fashion Maker” is not amusement, and it is not classified in heading 9503, HTSUS.

The subheading EN for subheading 9503.70 provides:

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.

The subheading EN is subject to substantiated classification in heading 95.03. In this case, because the articles within the set consist of articles for art-related activities, articles excluded from heading 9503, HTSUS, classification in the heading has not been substantiated.

The commenter asserts that subheading 9503.70 is an eo nomine provision, and that goods may be classified therein pursuant to GRI 1, and that recourse to GRI 3 is unnecessary. While we agree that goods may be classified in subheading 9503.70, HTSUS by application of GRI 1, without recourse to GRI 3, we do not agree that subheading 9503.70 is an eo nomine provision. As explained above, and to clarify our conclusion, we do not find that the article at issue is designed for amusement, and therefore classification in the heading is not substantiated. See HQ 962327, dated June 23, 2000, in which it was determined that none of the items in an Adventure in Art Travel Pack were toys in their own right, and that nothing in the way the goods were put together made them a toy as opposed to the art and drawing materials which they are on their own, and as such they did not constitute a toy put up in a set. The next issue to be determined was whether they constituted a GRI 3(b) set outside of heading 9503, HTSUS. Because we have concluded that the subject article is not under heading 9503, HTSUS, as a set or otherwise, we also turn to GRI 3(b) to determine whether the article can be classified as a set under any other provision of the HTSUS.

The commenter cites to HQ 087441, dated January 8, 1991, which affirmed HQ 086407, supra, as supporting classification of art sets or kits under subheading 9503.70, HTSUS. Under HQ 087441, a prerequisite of classification in subheading 9503.70, HTSUS, is that the articles must be put up for use as a toy. Neither of the articles at issue in HQ 087441, were limited to drawing type of activities, such as in the instant article. Nothing about the instant article suggests any amusement other than that inherent in drawing and coloring. See e.g. HQ 962327, supra.

The commenter cites to HQ 086330, dated May 14, 1990, HQ 958361, dated July 3, 1996, and HQ 960067, dated March 24, 1998, all of which pertain to sets consisting of pens and plastic rings, intended to create spiral designs on paper. These were determined to be classified in subheading 9503.70, HTSUS. CBP finds the spiral drawing kits distinguishable from the rubbing template kits in issue, in that the spiral drawing kits are educational as to how mechanical things work, and require specific manipulation to the extent that gears combined with motion are involved.

The commenter compares the rubbing templates to “Super Egg Putty,” jacks, and jump ropes, which have been classified as toys within heading 9503, HTSUS, as opposed to articles of plastic, metal or other component materials. The commenter states that the items, like the rubbing templates, provide amusement in their use, warranting classification as toys. Unlike the other articles however, the rubbing templates, have the utilitarian purpose of creating designs, while the “Super Egg Putty” and jump ropes appear to be designed for amusement, and not some utilitarian purpose. Contrary to the comment, jacks have been classified in heading 9504, HTSUS as “Articles for arcade, table or parlor games.” See e.g. NY C89031, dated June 26, 1998.

In HQ 952413, dated February 17, 1993, we had concluded that similar rubbing templates, were similar in character to the stencils in a “Stencils and Pencils” set that had been classified as a toy as opposed to a drawing instrument, in HQ 950926, dated March 31, 1992. HQ 966197, dated July 21, 2003, revoked HQ 950926, concluding that the subject set was not designed for amusement, but had the essential character of the stencil, a drawing instrument, classified in heading 9017, HTSUS.

With respect to the rubbing templates, we do not find they are classified in heading 9017, HTSUS. The ENs to heading 9017, include among drawing instruments 1) pantographs and eidographs, 2) drafting machines, 3) drawing compasses, dividers, reduction compasses, spring bows, mathematical drawing pens, dotting wheels, etc., 4) set squares, adjustable squares, T squares, drawing curves, rulers, 5) protractors, and 6) stencils. In HQ 952413, supra, we stated that templates and stencils have similar definitions, however in that case found that the subject rubbing templates did not “precisely” fit the definition of a template. In HQ 952413, a “template” was defined as “a pattern, mold, or the like, usually consisting of a thin plate of wood or metal, serving as a gauge or guide in mechanical work.” We find that the rubbing templates at issue do not fit the definition of the type of template that is similar to a stencil, and are not described in heading 9017, HTSUS.

We find that the rubbing templates within the “Fashion Maker” are classified in heading 3926, HTSUS, specifically in subheading 3926.90.98, HTSUS, as “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.”

No single heading covers the subject “Fashion Maker” which consists of several different articles, therefore classification must be accomplished by other than GRI 1. Goods that are, prima facie, classifiable under two or more headings, are classifiable in accordance with GRI 3. GRI 3(a) states in part that when two or more headings each refer to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific, even if one heading gives a more precise description of the goods.

GRI 3(b) states, in relevant part, that goods put up in sets for retail sale shall be classified as if consisting of the material or component which gives them their essential character, insofar as this criterion is applicable. Explanatory Note (X) to GRI 3(b), on p. 5 (2002) states that for purposes of Rule 3(b) the term “goods put up in sets for retail sale” means goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (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).

The subject merchandise consists of 12 plastic rubbing templates with 24 images, 14 colored pencils, 1 crayon with holder, a plastic frame, and paper, all packaged together in a box. The items are prima facie classifiable in more than two different headings. The items packaged together, consist of articles put up together to carry out the specific activity of creating images on paper. The articles are put up in a manner suitable for sale directly to users without repacking. Therefore the kit in question is within the term “goods put up in sets for retail sale.” GRI 3(b) states in part that goods put up in sets for retail sale, which cannot be classified by reference to 3(a), are to be classified as if they consisted of the component which gives them their essential character.

The factor or factors which determine essential character will vary with the goods. EN Rule 3(b)(VIII) lists as factors the nature of the material or component, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods. In this case, we find that the rubbing templates, for purposes of GRI 3(b), impart the essential character of the set as they provide the designs to be drawn, the motif, and comprise the bulk of the set. See EN VIII, GRI 3(b); see also Better Home Plastics Corp. v. U.S., 916 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997).

Because the rubbing templates impart the essential character of the “Fashion Maker” set, they control the classification of the set. The rubbing templates are articles made of plastics. Articles of plastics are classified in Chapter 39, HTSUS. As no specific heading in Chapter 39 describes these articles, the rubbing templates are classified in heading 3926, HTSUS, specifically in subheading 3926.90.98, HTSUS, as “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The plastic rubbing templates are consistent with the plastic articles listed in the EN 39.26(12), such as “beads, figures and letters.”

HOLDING:

By application of GRI 3(b), the “Fashion Maker,” is classified in heading 3926, specifically subheading 3926.90.9880, HTSUSA, as “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other,” with a column one, general duty rate of 5.3% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.

EFFECT ON OTHER RULINGS:

NY J88507, dated October 6, 2003, is hereby revoked.

Sincerely,

Myles B. Harmon, Director

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See also:

• Tariff No.: 3926.90.98 - Other articles of plastic, nesoi
• Tariff No.: 9017.20.80 - Other drawing, marking-out or mathematical calculating instruments, nesoi
• Tariff No.: 9503.70.00 - Toys neosi, put up in sets or outfits and parts and accessories thereof
• Tariff No.: 9503.90.00 - Toys and reduced scale models neosi and parts and accessories thereof