CLA-2 RR:CR:GC 960067 MMC
Ms. Regina M. Bernard, Imports Supervisor
Hasbro, Inc.
1027 Newport Avenue
P.O. Box 1059
Pawtucket, Rhode Island 02862-1059
RE: 3-D Spirograph
Dear Ms. Bernard:
This is in response to your November 5, 1996, letter, with
enclosed sample, to the Customs National Commodity Specialists
Division, New York, requesting a classification ruling for an article
known as a "3-D Spirograph Design Toy" under the Harmonized Tariff
Schedule of the United States Annotated (HTSUS). We regret the delay
in responding.
FACTS:
The article identified as # 67012 "3-D Spirograph" contains a
set of 13 neon-colored ridged serial gears, 2 gear rings, 1 square
ring, 1 propeller gear, 1 ring holder, and a storage tray all of the
foregoing of plastic, 2 ball point pens, 10 sheets of paper, a pair
of "3-D" eye glasses made of paper and plastic, and a set of printed
instructions. A user pushes a sheet of paper onto the pegs of the
ring holder. Then the user selects a ring and the ring is placed on
the holder's pegs over the piece of paper. The user then selects a
gear and places it inside the ring so that the teeth on the gear and
ring engage. The user then places a pen tip in one of the gear's
holes. With one hand, the user holds the ring down and with the
other holds the pen upright and moves the gear around the inside of
the ring. When the paper is viewed with the 3-D glasses, the
tracings appear to be three dimensional.
The instructions describe the article, in pertinent part, as
follows "...3-D Spirograph, the exciting design toy that lets you
turn your Spirograph patterns into bright, vibrant 3-D images!"
"With your imagination and the parts in this set you can make an
endless number of 3-D Spriograph designs! For your own unique
patterns, place the tip of your pen...[b]elow are just a few of the
designs that you can create." The box is marked "ages 5 & up" and
carries a "warning: Choking Hazard-Small parts. Not for children
under 3 years."
ISSUE:
What is the proper classification of the "3-D Spirograph?"
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the
General Rules of Interpretation (GRI's). GRI 1 provides that the
classification of goods shall be determined according to the terms of
the headings of the tariff schedule and any relative section and
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 GRI's may then be applied. The
relevant headings and subheadings considered when classifying the "3-D Spirograph" were as follows:
3926 Other articles of plastics and articles of other materials
of headings 3901 to 3914
4802 Uncoated paper and paperboard, of a kind used for writing,
printing or other graphic purposes, and punch card stock
and punch tape paper, in rolls or sheets, other than paper
of heading 4801 or 4803; handmade paper and paperboard:
9503 Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all kinds;
parts and accessories thereof
* * * * *
9503.70 Other toys, put up in sets or outfits, and parts and
accessories thereof
The term "toy" is not defined in the HTSUS. However, in
understanding the language of the HTSUS, the Explanatory Notes (ENs)
of the Harmonized Commodity Description and Coding System may be
utilized. The ENs, although not dispositive or legally binding,
provide a commentary on the scope of each heading, and are generally
indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 FR 35127, 35128 (August 23, 1989).
The ENs to Chapter 95 state, in pertinent part, that "[t]his
Chapter covers toys of all kinds whether designed for the amusement
of children or adults." Although not set forth as a definition of
"toys," we have interpreted the just-quoted passage from the ENs as
equating "toys" with articles "designed for the amusement of children
or adults," although we believe such design must be corroborated by
evidence of the articles' principal use. This view has been
articulated by this Office in a number of prior rulings, including
HRL 950700 of August 23, 1993.
The ENs for heading 95.03 provide, in pertinent part, that:
[c]ollections of articles, the individual items of which if
presented separately would be classified in other headings
in the Nomenclature, are classified in this Chapter when
they are put up in a form clearly indicating their use as
toys (e.g., instructional toys such as chemistry, sewing,
etc., sets).
With respect to toy sets, the ENs for subheading 9503.70
provide, in pertinent part, that:
"[s]ets" 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.
It is Customs position that "toys put up in sets or outfits"
(subheading 9503.70) is an eo nomine provision denoting a clearly
identifiable class or kind of goods. Consequently, goods may be
classified in subheading 9503.70 pursuant to GRI 1, and recourse to
the other GRI's, particularly the provisions of GRI 3 relating to
sets, is unnecessary. See, e.g., HRL 086407 of March 22, 1990, HRL
086330 of May 14, 1990, and HRL 950700 of August 23, 1993. Such
sets typically contain complementary articles intended for use
together, rather than individually, to provide amusement. It is
sufficient that the components of the toy set possess a clear nexus
which contemplates a use together to amuse. The "3-D Spirograph"
combines three complete articles, plastic gears, paper and 3-D
glasses in a retail package. These articles are intended for use
together to occupy the user in a pleasant or enjoyable (i.e.,
amusing) way, allowing the user to create a variety of different
designs which then can be viewed in three dimensional form.
Accordingly, the "3-D Spirograph" meets the requirements for
classification as toy sets.
As a result of finding the "3-D Spirograph" to be a toy set
properly classified in Chapter 95, classification of the article
elsewhere in the HTSUS is precluded. For classification of similar
articles see HRL 957131 dated February 27, 1995, which classified as
a toy set an article known as "Spiral Art," which consisted of three
kaleidoscope stencils and their holder, felt tipped watercolor
markers, sheets of drawing paper and a pencil. See also HRL 086330,
issued May 14, 1990, which held that a retail package identified as
"Twirlo Graph" (similar to the "spiral art" set) consisting of
stencils, a drawing ring, ball point pens, and a writing pad, was a
toy set classified in subheading 9503.70.8000, HTSUS, and HRL 958361
dated July 3, 1996, in which "Easy Spiro," consisting of multi-colored plastic wheels and pen insets containing different colored
ink which when moved over paper created different decorative patterns
or borders, was also classified as a toy under subheading
9503.90.0030, HTSUS, which provided for other toys.
HOLDING:
The "3-D Spirograph" is classified under subheading 9503.70.00,
HTSUS, the provision for "[o]ther toys; reduced-size ("scale") models
and similar recreational models, working or not; puzzles of all
kinds; parts and accessories thereof: Other toys, put up in sets or
outfits, and parts and accessories thereof. The applicable 1998
duty rate is free.
Sincerely,
John Durant, Director
Commercial Rulings Division