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