CLA-2 RR:CR:GC 962971 AML
TARIFF NOS.: 4202.92.45, 4901.99.00, 4905.99.00, 4911.99.60, 8513.10.20,
9005.10.00, 9014.10.90, 9208.90.00, 9608.20.00, 9503.70.00
Mr. Bruce N. Shulman
Stein, Shostak, Shostak & O’Hara, P.C.
Suite 807
1620 L Street, N.W.
Washington, D.C. 20036-5605
Re: Reconsideration of NY E82029; Stargazer and Pathfinder; Fact Packs.
Dear Mr. Shulman:
This is in reference to your letter of July 13, 1999, on behalf of Walter Foster Publishing, Inc., requesting reconsideration of New York Ruling Letter (NY) E82029, dated June 23, 1999, which classified each item contained in the “The Stargazer Fact Pack” (“Stargazer”) and in “The Pathfinder Fact Pack” (“Pathfinder”) individually under the Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered NY E82029 and now believe that the classification set forth concerning the Stargazer Fact Pack is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on July 26, 2000, in Vol. 34, No. 30 of the Customs Bulletin, proposing to modify NY 82029 and to revoke the treatment pertaining to the Stargazer Fact Pack. We regret that the notice inadvertently omitted language regarding the Pathfinder. We believe that the classification set forth in NY E82029 concerning the Pathfinder Fact Pack is correct. Several comments were received in response to this notice. In preparing this ruling, consideration was given to your letter of August 3, 2000.
FACTS:
The Stargazer Fact pack is made up of the following items:
1. A 32 page, paperbound booklet (“A First Guide to the Stars”) printed with
illustrations and text which introduces a child to astronomy and includes references to other articles contained in the pack.
2. A 16 page “Stargazer Activity Book” printed with text and diagrams providing text and diagrams for observing the night sky.
3. A printed map of the moon.
4. A packet of “Star System Stick-ons” which are small, luminescent, plastic
shapes molded in the form of planets, stars, comets and the like. Included are small adhesive disks intended to be used to affix the plastic shapes to surfaces.
5. A “planisphere,” which is a map of the constellations printed on a paperboard
disk with a rotating plastic overlay.
6. One small plastic telescope.
7. One brightly colored plastic flashlight.
8. One felt-tipped pen.
9. A child-sized clear polyvinyl chloride (PVC) backpack which serves as the
retail package for the assortment of items.
The Pathfinder Fact Pack is made up of the following items:
1. A 32 page, paperbound booklet (“A First Guide to Mapping”) printed with
illustrations and text which introduces a child to mapping and includes references to other articles contained in the pack.
2. A 16 page “Pathfinder Activity Book” printed with text and diagrams providing text, diagrams and activities for introducing the use of and the creating maps.
3. A printed map of the world with a “treasure map” printed on the reverse side.
4. Two sheets of stickers to be used with the world and treasure maps for
labeling countries and continents and to create the treasure map.
5. One small pair of plastic binoculars.
6. One plastic whistle with attached loop of cord.
7. One brightly colored plastic flashlight.
8. One felt-tipped pen.
9. One plastic compass.
10. A child-sized clear polyvinyl chloride (PVC) backpack which serves as the retail package for the assortment of items.
ISSUE:
Whether the “Stargazer Fact Pack” and “Pathfinder Fact Pack” are classifiable as toys put up in sets or outfits, as sets put up for retail sale, or according to the classification of each of their respective components?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 or 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 may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.
Heading 9503 covers other toys. 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.
The ENs for heading 95.03 provide, in pertinent part, that:
This heading covers:
(A) [a]ll toys not included in headings 95.01 and 95.02.
* * *
[t]hese include:
* * *
(17) [e]ducational toys (e.g., toy chemistry, printing, sewing and knitting sets).
* * *
[c]ertain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited "use"; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.
[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).
[c]ertain of the above articles (toy arms, tools, gardening sets, tin soldiers, etc.) are often put up in sets.
The EN to subheading 9503.70, provides, in pertinent part, that:
Subject to substantiated classification in heading 95.03 and for the purpose of this subheading:
(i) “Sets” 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.
(ii) “Outfits” are two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or profession.
If these goods can be shown to be designed principally for the amusement of children or adults, they may qualify as a set of heading 9503, HTSUS. Upon examination of the individual articles contained in the Stargazer collection, only one is a toy in its own right. The plastic, hand-held telescope is a toy; its principal use, though “capable of a limited ‘use,’” is similar to that of an actual telescope. The telescopes “are . . . distinguishable by their size and limited capacity from real” telescopes and can be understood to be for looking at celestial bodies (more aptly, imitating that pursuit) as the instruction book indicates (see the EN above). We note that the EN references to collections of articles and outfits allow collections such as these to be classified as toys, i.e., “two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or
profession.” See the EN to subheading 9503.70, supra.
Upon examination of the articles in the Pathfinder collection, only one is a toy in its own right. The plastic, hand-held binoculars are a toy; their principal use, though “capable of a limited ‘use,’” is similar to that of actual binoculars. The binoculars “are... distinguishable by their size and limited capacity from real” binoculars and can be understood to be for looking at objects, persons and scenery (more aptly, imitating that pursuit) as the instruction book indicates (see the EN above).
In the tariff context, “amuse” is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. An examination of the Stargazer Fact Pack and the Pathfinder Fact Pack shows that neither is designed to amuse, but rather both are designed to facilitate some kind of educational activity.
In the most recent ruling cited in support of the claim of classification as “[t]oys, put up in sets or outfits” in subheading 9503.70, HTSUS, the quoted portion speaks to the point that some components may be used independently of the rest in a subheading 9503.70 set without disqualifying the classification. However, integral to that concept is that the articles ”typically” are used together to provide amusement but also that “[i]t is sufficient that the components of the toy set possess a clear nexus which contemplates a use together to amuse.” HQ 959232, issued June 2, 1998 (emphasis added). Of the articles under consideration here, all articles in the Stargazer function as astronomy guides and implements, that is, the disparate objects are used conjunctively to amuse while guiding the user through the steps of elementary astronomy. The nexus between the articles contained in the Stargazer is that of a child amusing himself by emulating the adult activity of studying the stars and learning fundamental facts about astronomy.
In the case of the Stargazer, the backpack serves to store and transport the articles, thereby aiding in stargazing on site. It is this nexus and function – that of storing the disparate articles and enabling the user to transport the outfit (Fact Pack) to any desired vantagepoint to observe the stars – that makes the backpack part of the set or outfit in this particular instance.
Contrariwise, there is no clear nexus among the articles contained in the Pathfinder. As you note in your August 3, 2000, letter, the Pathfinder is an “educational toy” designed to teach exploration, mapping and geography. While it can be suggested that the intended function of the disparate group of articles is that of providing amusement for children who emulate the adult activities of exploring, map reading and orienteering (and learning fundamental facts about these skills), we find that the disparate articles in the Pathfinder lend themselves to disparate pursuits. That is, as compared to the Stargazer, which provides disparate articles intended to be used for a
single pursuit – astronomy – the Pathfinder’s disparate articles, when used in tandem with the activity book, are used for several similar pursuits (either map reading, map making, orienteering), rather than a single, defined purpose. The rendition and recitation of the history and derivation of the different types of maps offer no amusement at all. We find that the articles contained in the Pathfinder do not “possess a clear nexus which contemplates a use together to amuse.” Therefore, with regard to the Pathfinder, we affirm the determination made in NY E82029.
The Stargazer is a collection of booklets and materials intended to provide an elementary introduction to astronomy. The goods in the Stargazer are put up together to make the goods more than the sum of their parts, i.e., they comprise an educational toy which, through amusing activity not unlike a chemistry or sewing set (mentioned as exemplars in the EN), introduces a child to astronomy. Emulating an adult activity while gaining knowledge about astronomy amuses the child. Consequently, the Stargazer constitutes toys put up in sets or outfits within the subheading 9503.70 text and its EN. The goods when imported together are more educational when used together than they would be if they were imported alone. In other words, a set or outfit is created out of the disparate objects.
We do not reach the question of whether these goods constitute a “GRI 3(b)” set because classification is resolved at GRI 1 by way of GRI 6. GRI 6 provides, in pertinent part, that “for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules [GRIs 1 – 6], on the understanding that only subheadings at the same level are comparable.”
In consequence of the goods in the Stargazer being put up in a form clearly indicating their use as toys, forming a set put up for retail sale, they are classifiable as toys put up in sets or outfits for retail sale.
The holding with regard to the Stargazer comports with several prior Customs rulings: NY 858364, dated December 13, 1990, in which a toy detective set was classified in subheading 9503.70.80, HTSUS; NY B88271, dated July 28, 1997, in which a “Doring Kindersley Science Kit” was classified in subheading 9503.70.00, HTSUS; NY A87577, dated September 27, 1996, in which, among other things, an “Expedition Camping Set” was classified in subheading 9503.70.00, HTSUS; HQ 083048, dated October 12, 1989, in which a chemistry set was classified under subheading 9503.70.80, HTSUS; HQ 084926, dated September 20, 1989, in which a “Toy Junior Science Set” was classified in subheading 9503.70.80, HTSUS; and HQ 959686, dated March 31, 1998, in which a “Fun with Electronics” set was classified in subheading 9503.70.00, HTSUS.
The holding with regard to the Pathfinder comports with a prior Customs ruling:
Headquarters Ruling Letter (HQ) 962327, dated June 23, 2000, which determined that the articles contained in the “Adventures in Art Travel Pack” did not constitute a toy set or outfit under heading 9503, HTSUS, and classified the individual components of Travel Pack according to their eo nomine provisions.
HOLDING:
At GRI 6, the contents and container of the “Stargazer Fact Pack” are classifiable in subheading 9503.70.00, HTSUS, as other toys put up in sets or outfits, and parts and accessories thereof.
At GRI 1, the contents and container of the “Pathfinder Fact Pack” are classifiable as follows:
1. The 32 page, paperbound booklet (“A First Guide to Mapping”) printed with
illustrations and text which introduces a child to mapping and includes references to other articles contained in the pack is classifiable under subheading 4901.99.00, HTSUS, which provides for other printed books containing 5 or more pages each, but not more than 48 pages each.
2. The 16 page “Pathfinder Activity Book” printed with text and diagrams
providing text, diagrams and activities for introducing the use of and the
creating maps is classifiable under subheading 4901.99.00, HTSUS,
which provides for other printed books containing 5 or more pages each, but not more than 48 pages each.
3. The printed map of the world with a “treasure map” printed on the reverse
side is classifiable under subheading 4905.99.00, HTSUS, which provides
for other maps . . . printed.
4. The two sheets of stickers to be used with the world and treasure maps for
labeling countries and continents and to create the treasure map are
classifiable under subheading 4911.99.60, HTSUS, which provides for other
printed matter: printed on paper in whole or in part by a lithographic process.
5. The pair of plastic binoculars is classifiable under subheading
9005.10.00, HTSUS, which provides for other binoculars.
6. The plastic flashlight is classifiable under subheading
8513.10.20, HTSUS which provides for flashlights.
7. The felt-tipped pen is classifiable under subheading is classifiable under
subheading 9608.20.00, HTSUS, which provides for as felt tipped and other porous-tipped pens and markers.
8. The plastic whistle with an attached loop of cord is classifiable under
subheading 9208.90.00, HTSUS, which provides for whistles, call horns and
other mouth-blown sound signaling instruments.
9. The plastic compass is classifiable under subheading 9014.10.90, HTSUS,
which provides for other direction finding compasses.
10. The child-sized clear polyvinyl chloride (PVC) backpack which also serves
as the retail package for the assortment of items is classifiable under
subheading 4202.92.45, HTSUS, which provides for travel, sports and
similar bags, with outer surface of sheeting of plastic.
EFFECT ON OTHER RULINGS:
NY E82029 is MODIFIED. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division