CLA-2 RR:TC:MM 958063 JAS
Paul S. Anderson, Esq.
Sonnenberg & Anderson
200 South Wacker Drive
Chicago, ILL 60606
RE: Playskool Painter; Battery-Operated Drawing Pad for Children, Drawing
Instrument; Lighted Drawing Pad with Pen for Composing and Editing Pictures
and Drawings; Chapter 90, Note 1(k); Toy, Heading 9503, Article Designed and
Used Principally for Amusement of Children or Adults, Chapter 95 General ENs;
HQ 953922 , HQ 957958, HQ 958805
Dear Mr. Anderson:
In your letter of April 27, 1995, on behalf of Tiger Electronics, you inquire as to the tariff classification of the Playskool Painter. A sample was submitted.
FACTS:
The Playskool Painter, model 7-202, is a plastic, battery operated drawing pad with pen, measuring approximately 9 ½ x 12 ½ inches. It is an electronic drawing device that can be easily carried by means of a plastic handle and enables children, ages 5 and up, to compose and edit pictures and drawings, and to animate them, via cable hookup, on a television screen and record them by VCR. The user can add shapes, characters, graphic or background scenes at will by drawing images on the drawing pad with the pen. These images appear on the tv screen not on the pad. The device includes a graphic library containing pre-drawn background scenes, and color pallet, as well as features for drawing lines, rectangles, ellipses, for fine pen, bold pen, framed pen, and dot pen, and sophisticated graphic editing features such as erase, move, cut and copy.
The Playskool Painter also contains as subsidiary features function keys that activate both a keyboard on the user's television set by which singing birds correspond with certain keys that are depressed, and seven mathematical games and eight - 2 -
different picture puzzles. The box containing the Playskool Painter bears the following advertisements "Lectronic Learning", "Look What I Can Draw!" and "Children Bring Their Drawings To Life With This Super Electronic Drawing Pad!"
You maintain that the Playskool Painter is principally used to amuse children while encouraging their creativity, and is therefore a toy classifiable free of duty in subheading 9503.90.00, Harmonized Tariff Schedule of the United States (HTSUS). You contend that numerous rulings on substantially similar plastic articles confirm that the amusement factor in creating artwork is determinative in order to classify goods under the toy provisions of Chapter 95. You note HQ 953922, dated November 17, 1993, which classified merchandise conceded to be virtually indistinguishable from the Playskool Painter in subheading 9017.20.80, HTSUS, as other drawing instruments. However, for reasons we will discuss later, you contend this ruling is legally insufficient.
The provisions under consideration are as follows:
9017 Drawing, marking-out or mathematical instruments...; parts and
accessories thereof:
9017.20 Other drawing, marking-out or mathematical
calculating instruments:
9017.20.9 Other...5.6 percent
* * * *
9503 Other toys; ...; parts and accessories thereof:
9503.90.00 Other...Free
ISSUE:
Whether the Playskool Painter is a toy for tariff purposes; if not, whether it is a drawing instrument.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. - 3 -
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 under the System. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
If the Playskool Painter is a toy of Chapter 95, it cannot be classified as a drawing instrument of Chapter 90. Chapter 90, Note 1(k), HTSUS. Although the term "toy," in general, is not specifically defined in the tariff, the Ens, at p. 1585, 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. Additional U.S. Rule of Interpretation 1(a), HTSUS.
The Playskool Painter is designed to permit children to draw and trace pictures with the aid of the line drawings on the underside of the illuminated drawing surface. The principal function of this product is not to amuse, but rather to facilitate the educational and developmental process of drawing. While it is true that children may find the process of drawing to be amusing, drawing and amusement are separate things. The use of the Playskool Painter accomplishes what it is designed to do, namely, make finished drawings. Moreover, it should be noted that the heading 95.03 ENs indicate that all the implements for drawing activities are excluded from that heading and are classified in other chapters, for example paints in heading 3213, childrens' picture, drawing or coloring books in heading 4903, transfers in heading 4908, and crayons and pastels in heading 9609. One may draw the inference that if the implements to draw are excluded from the toy provisions, then other implements, such as the Playskool Painter, clearly designed to facilitate drawing and not for amusement, would likewise be excluded. For these reasons, we conclude the evidence is insufficient in this case that the Playskool Painter is principally used for amusement purposes. Therefore, it is not a toy for tariff purposes.
HQ 953922, dated November 17, 1993, to which you refer, classified substantially similar merchandise in subheading 9017.20.80 (now 90), HTSUS. You argue that this ruling applies only to high-precision, specialized, technical instruments and apparatus, and that the Playskool Painter possesses limited functional use and design features and lacks the degree of sophistication appropriate to many of the exemplars listed in the ENs to heading 90.17. The ENs, at p. 1485, list various apparatus or devices considered to be drawing instruments of heading 90.17, but these are examples only, and are not exclusive of articles included within the provision. - 4 -
With the exception of stencils, there is no indication that degree of sophistication is considered a relevant criteria for heading 9017 purposes. For example, Protractors, listed as item (5) on p. 1486 as a drawing instrument, includes both "ordinary' protractors and "complex" protractors.
Where not defined in the text of the HTSUS or in the ENs, tariff terms are construed according to their common and commercial meanings, which are presumed
to be the same. Standard lexicons attribute the following meanings to the term drawing: 2: the art or technique of representing an object or outlining a figure, plan, or sketch by means of lines, 3b: a representation formed by drawing: SKETCH. Likewise, the term to draw means to create a likeness or picture in outlines. In addition, an importer's catalogs and advertisements are not dispositive in classifying goods, but are probative of how the importer views the merchandise and the market he is targeting. THK America, Inc. v. United States, Slip Op. 93-207 (Ct. Int'l. Trade, decided November 1, 1993). As stated on p.5 of your April 25, 1995, submission, the Playskool Painter contains a variety of functions, including drawing, animation, games and musical composition. However, for the reasons stated, we conclude from the available evidence that the Playskool Painter is principally used as a drawing instrument of heading 9017. HQ 953922, dated November 17, 1993, and HQ 957958 and HQ 958805, both dated February 8, 1996, with cases cited, support this classification.
HOLDING:
Under the authority of GRI 1, the Playskool Painter, model 7-202, is provided for in heading 9017. It is classifiable in subheading 9017.20.90, HTSUS.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division