CLA 2 RR:CR:GC 962566 AML
TARIFF NOS.: 3926.90.98; 4421.90.60; 5808.90.00; 9603.90.80
Patricia Raymond
International Logistics Manager
Manco, Inc.
32150 Just Imagine Drive
Avon, OH 44011-1355
RE: Reconsideration of NY D85042; “Arts and Crafts Fun Pack.”
Dear Ms. Raymond:
In a letter dated January 6, 1999, addressed to the National Commodity Specialist Division, New York, you requested reconsideration of New York Ruling Letter (NY) D85042, issued to your agent, Blaser & Mericle, Inc., on December 14, 1998, concerning the classification of an “Arts and Crafts Fun Pack” under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded to this office for response. A sample and brochures were submitted for our review.
FACTS:
The subject article, the Arts and Crafts Fun Pack, item # 03518539, is described as follows:
Within a single retail package are contained the following items:
24 chenille stems - 12" long pipe cleaners with acrylic fibers of varied length twisted around a wire stem. The individual stems are colored: either violet, light blue, yellow or white.
22 pompons - soft, round bundles of man-made fibers in four sizes: approximately 2", 1", 1/2", and 1/4" in diameter. The individual pompons are colored: either violet, light blue, yellow or white.
24 wiggle eyes - artificial “eyes” composed of a clear, concave plastic front attached to a flat opaque back within which is housed a black plastic disc which is smaller in circumference than the outer casing. The black disc moves within the casing when moved or shaken.
24 craft sticks - flat wooden sticks resembling popsicle sticks or very small tongue depressors, which measure 4" in length and 3/8" in width. The individual sticks are colored: either blue, yellow, green or red.
Within the package is a four item “project ideas” list of suggested uses for the fun pack. The package contains neither glue nor scissors.
ISSUE:
Whether the “Arts and Crafts Fun Pack” is classifiable as a toy set within subheading 9503.70.00, HTSUS, which provides for other toys, put up in sets; or whether it must be classified according to the individual component articles?
LAW AND ANALYSIS:
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRIs). GRI 1, HTSUS, 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[.]”
In New York Ruling Letter (NY) D85042, dated December 14, 1998, it was determined that the “Arts and Crafts Fun Pack” is not a set for tariff classification purposes. Each item was classified separately in its own appropriate tariff heading.
The subheadings 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.
* * * * * * * * * * * *
4421 Other articles of wood:
4421.90 Other:
Toothpicks, skewers, candy sticks,
ice cream sticks, tongue depressors,
drink mixers and similar small wares:
4421.90.60 Other.
* * * * * * * * * * * *
5808 Braids in the piece; ornamental trimmings in
the piece, without embroidery, other than
knitted or crocheted; tassels, pompons and
similar articles:
5808.90.00 Other.
* * * * * * * * * * * *
9503 Other toys; reduced size (“scale”) models and
similar recreational models, working or not;
puzzles of all kinds; parts and accessories
thereof:
9503.70.00 Other toys, put up in sets or outfits, and
parts and accessories thereof.
* * * * * * * * * * * *
9603 Brooms, brushes (including brushes constituting
parts of machines, appliances or vehicles), hand
operated mechanical floor sweepers, not motorized,
mops and feather dusters; prepared knots and tufts
for broom or brush making; paint pads and rollers;
squeegees (other than roller squeegees):
9603.90 Other:
9603.90.80 Other.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The primary question this ruling addresses is whether the subject articles are classifiable individually in the various headings providing for them, or are classifiable in their entirety within heading 9503 as other toys. Although the provision for toys put up in sets, subheading 9503.70, HTSUS, is found at the six digit subheading level, Customs has utilized the “toys put up in sets” concept to determine, from the outset, whether certain articles normally classified elsewhere in the HTSUS may fall within the toy provision based on the manner in which they are put up upon importation.
Although the term “toy,” in general, is not specifically defined in the tariff, the ENs to Chapter 95, HTSUS, 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. See, Additional U.S. Rule of Interpretation 1(a), HTSUS.
However, the subject merchandise does not consist of merely one article, but contains several distinct articles that, when considered individually, cannot be construed as toys. The ENs to heading 9503 provide that, “collections 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).”
Customs, in general, classifies merchandise fitting this description in subheading 9503.70, HTSUS, as toys put up in sets or outfits and still maintains that the criteria applicable to a GRI 3 set put up for retail sale (e.g., at least two items classifiable in different headings, items put up to meet a particular need or carry out a specific activity, and items put up in a manner suitable for sale without repacking) are not applicable to toys put up in sets.
In this regard, we note that some of the exemplars of toy sets found in the ENs (e.g., toy arms, tin soldiers) do not fit the criteria for a GRI 3 set because they are not classifiable in different headings. In addition, we find no indication that toys put up in sets must meet a particular need or carry out a specific activity. If subheading 9503.70, HTSUS, were not considered distinct from a GRI 3 analysis, all such merchandise would be classified, pursuant to GRI 3(b) or 3(c), by its essential character which would vitiate the need for the provision altogether.
The application of the toy set provision is relatively straightforward when each article within the set individually is classified as a toy. However, a greater challenge arises when classifying merchandise consisting entirely or partly of articles which individually are classified elsewhere in the HTSUS. Whereas the ENs to heading 9503 indicate that in the latter situation articles are classified within heading 9503 when put up in a form indicating their use as toys, it is our position that articles which normally would be classified elsewhere in the HTSUS may be classified as toys when put up together so that they are designed and used principally for amusement. In contrast to GRI 3 sets, the articles need not meet a particular need or carry out a specific activity.
It is this office’s position that merchandise classified in subheading 9503.70, HTSUS, should contain complementary articles generally used together as a combination, and not individually, to provide amusement (e.g., the components possess some nexus and work together to amuse). However, not all the articles are required to be used at the same time to be considered a toy put up in a set.
When merchandise consists entirely or partly of articles which individually are classified elsewhere in the HTSUS, the manner in which the articles are put up together (e.g., packaged and sold as a combination of articles) should convert the articles from their design and use as articles classifiable elsewhere in the HTSUS to toys. If no “conversion” results from the manner in which the articles are put up together (e.g., the articles are designed and used the same as when put up individually), this may indicate that the articles should be classified individually in their appropriate HTSUS headings.
“It is well established that an imported article is to be classified according to its condition as imported . . . .” XTC Products, Inc. v. United States, 15 CIT 348, 352, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). Considered individually, neither the sticks, nor the stems, nor the pompons nor the “wiggle eyes” can be considered to be a toy. The fact that they are packaged together upon importation does not change their character; collectively they cannot be considered to be toys for classification purposes. Further, the set does not contain either glue or scissors and none of the parts contain or are fabricated with adhesive.
The protestant suggests that the creative effort of combining the articles into a model or craft constitutes amusement. The ENs to heading 9503 undermine this position because the ENs contains the following exclusions:
This heading also excludes:
(a) Paints put up for children’s use (heading 32.13).
(b) Modeling pastes put up for children’s amusement (heading 34.07).
(c) Children’s picture, drawing or colouring books of heading 49.03.
* * *
(h) Crayons and pastels for children’s use, of heading 96.09.
(ij) Slates and blackboards, of heading 96.10.
The exclusion of articles such as crayons, modeling pastes, etc. from classification as toys under heading 9503 evinces a legislative intent to treat such articles, which require manipulative and creative efforts by the user, as articles other than toys. The “Arts and Crafts Fun Pack” is ejusdem generis with the above exemplars (see Sports Graphics, Inc. v. United States, 24 F. 3d 1390, 1392 (Fed. Cir. 1994), “[a]s applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms”). The essential characteristic or purpose of the above-listed exemplars is that they are articles or sets of articles which are media for creative efforts - the articles are essentially materials which can be manipulated, used or changed to create a drawing, painting or sculpture. Such articles are the means to the end. The individual components of the “Arts and Crafts Fun Pack” share this essential characteristic or purpose. As such, the “Arts and Crafts Fun Pack” is precluded from classification within heading 9503, HTSUS.
HOLDING:
The “wiggle eyes” are classifiable in subheading 3926.90.98, HTSUS, which provides for other articles of plastics, other.
The “craft sticks” are classifiable within subheading 4421.90.60, HTSUS, which provides for other articles of wood . . . ice cream sticks, tongue depressors . . ., other.
The pompons are classifiable within subheading 5808.90.00, HTSUS, which provides for . . . tassels, pompons and similar articles, . . . of man made fibers.
The “chenille sticks” are classifiable within subheading 9603.90.80, HTSUS, which provides for brooms, brushes . . . other, other.
EFFECT ON OTHER RULINGS:
NY D85042, dated December 14, 1998, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division