CLA-2 CO:R:C:G 086330 WAW

Mr. Jack Gonzalez
J.W. Hampton, Jr. & Co., Inc.
Custom House Brokers
15 Park Row
New York, N.Y. 10038

RE: Twirlo Graph

Dear Mr. Gonzalez:

This ruling is in response to your letter, dated January 15, 1990, on behalf of your client, F.W. Woolworth Co., concerning the tariff classification of twirlo graph under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the merchandise at issue was submitted along with your request.

FACTS:

The Twirlo Graph, Item Number 108, consists of the following articles: a plastic drawing ring, six plastic stencils, two ball point pens, one 3-1/2" by 5" writing pad all contained in a plastic bag with a ziploc-like fastener. The article is intended for use by children ages 5 and up. The article is being imported from Hong Kong.

ISSUE:

Whether a product that consists of diverse components which allow the user to create "art" and to learn an "artistic" technique is a toy under the HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Subheading 9503.70, HTSUSA, provides for other toys, put up in sets. The first question that arises in the analysis of the scope of this provision is whether the term put up in sets carries the same requirements as the term is used in GRI 3(b). For the purposes of GRI 3(b), goods put up in sets for retail sale are defined to be goods that: (a) consist of at least two different articles that are classifiable in different headings; (b) consist of products 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 repackaging.

Not all goods classified in subheading 9503.70, HTSUSA, will meet the GRI 3(b) set requirements. For example, subheading 9503.70.60, HTSUSA, is a provision for other toys put up in sets, toy alphabet blocks. However, such blocks do not consist of at least two different articles classifiable in two different headings. Likewise, their use is susceptible to a variety of purposes or activities. A child may use the blocks to build or spell. These two different activities serve different purposes: amusement and education. In sum, one may conclude that the requirements for sets established in GRI 3(b) are not correlative requirements for classification of items in subheading 9503.70, HTSUSA.

The term set is defined to mean: "A group of things of the same kind that belong together and are so used. . . ." American Heritage Dictionary 1122 (Second College Edition, 1985). The Explanatory Notes, which provide the official interpretation of the tariff at the international level, reflect in part this definition by stating that collections of items are classifiable in Chapter 95 if put up in a form clearly indicating their use as toys. Reading these statements together, one may conclude that the provisions for other toys, put up in sets, includes collections of items clearly identifiable as toys and collections of diverse components that when used together engage a child or an adult in an entertaining and pleasing activity. For both types of sets, the components must possess some nexus to suggest that the components belong together.

The "Twirlo Graph" kit includes a variety of components that would ordinarily be separately classified if imported separately. The kit, however, not only provides materials and instructions to permit the user to engage in an amusing activity but also permits the user to create a decorative item.

The issue is similar to Headquarters Ruling Letter (HRL) 086407, dated March 22, 1990. In HRL 086407, Customs held that a string art kit is designed principally for the amusement of a child and is classified as a toy. In that ruling, Customs determined that the activity involved in making the string art was more significant than the completed string art product itself. In that ruling, Customs distinguished the string art kit from a jewelry making kit, in which the activity of making the jewelry is secondary to the result.

We have determined that the "Twirlo Graph" set is designed primarily for the amusement of a child and is properly classified as a toy in Chapter 95, HTSUSA. In choosing to purchase the "Twirlo Graph" kit, a parent or child is more likely to focus on the activity of creating various designs on paper rather than the final result. "Twirlo Graph" requires that the user engage in the process of moving a design disk around the inside of a circular drawing ring with a ball point pen inserted into one of the holes of the design disk. Such activity encourages a variety of skills, including creativity and precision. The activity engaged in by the user results in intricate designs in various colors. Although the final product is pleasing to the eye, it does not appear likely that the ordinary consumer would purchase a completed twirlo graph art product for use as a decoration.

HOLDING:

Based on the foregoing analysis, "Twirlo Graph," item number 108, is classified under subheading 9503.70.8000, HTSUSA, as other toys, put up in sets or outfits, and parts and accessories thereof: Other: Other. Classification of articles under this subheading are subject to a rate of duty 6.8 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division