CLA-2-RR:CR:GC 966484 RSD
TARIFF NO. 9503.70.00
Mr. Alan Morgan
Wal-Mart Stores, Inc.
Mail Stop # 0410-L 32
601 N. Walton
Bentonville, Arkansas 72716-0410
RE: Plastic rock tumbler kit; Toys
Dear Mr. Morgan:
This is in response to your letter dated April 15, 2003, addressed to the Director, Customs National Commodity Specialist Division, New York, requesting a ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a plastic rock tumbler kit with accessories for making jewelry. Your letter was submitted to this office for a reply. A sample of the rock tumbler kit at issue was provided, and will be returned to you under a separate cover.
FACTS:
The subject merchandise is a rock tumbler kit. The kit consists of a rock tumbling machine and various items that are used in making jewelry and key chains. The rock tumbling machine is an electrically operated device for polishing rocks, stones, and minerals. It is entirely made of plastic with the exception of a 2-watt (0.00268 horsepower) output motor. The rock tumbling machine weighs less than two pounds. The rock tumbling machine has an on-off button. It also has three other buttons that set the time period that the rock tumbling machine will operate: 1 day, 2 days, or 4 days. The longer the rock tumbling machine operates, the more polished the stones will become. It is our understanding that in order to obtain highly polished stones, the rock tumbling machine will have to operate considerably longer than 4 days, perhaps up to a month. The subject rock tumbler has a maximum load of 16 oz., but the suggested load is 8 oz.
In addition to the rock tumbling machine, the kit contains the following supplies for polishing stones: 8 oz. gemstone rocks, one bag step-1 coarse-grind powder, one bag step-2 fine-grind powder, and one bag step-3 polishing powder. For making jewelry and key chains, the kit contains: three key chains, 12 setting holders in two styles, glue, one 18-inch silver tone necklace chain, four adjustable rings, three pairs of hanging earring wires, and 12 jump ring connectors.
The rock tumbler kit will be sold in the toy departments in Wal-Mart stores. The retail packaging for the rock tumbler indicates on the top right hand corner of the top panel that it’s “Fun to Use! Polish rock and minerals –-start your own collection or make crafts!” The bottom right of the top panel of the retail package says “Ages 10 & up”, and reads “Caution: electrically operated toy. Not recommended for children under 10 year of age. As with all electrical products, precaution should be observed during handling and use to prevent electric shock.” The box also shows pictures of children playing with shiny stones or with jewelry made with polished stones.
The instructions to the rock tumbler kit again provide a warning “CAUTION ELECTRIC TOY. Not recommended for children under 10 years of age. As with all electrical toys, adult supervision is recommended during use. Contains small parts that could be swallowed.” The instructions also explain how to operate the rock tumbler for polishing stones and provide jewelry making tips. The rock tumbler kit has a retail price of $19.73. There is no statement that the rock tumbler kit meets the ASTM standards for toys with a motor.
ISSUE:
Whether the rock tumbler kit is classified in heading 9503, HTSUS as a toy put up in a set or in heading 8464, HTSUS as a machine tool for polishing stone or in heading 8479, HTSUS as a machine and mechanical appliance not specified or included elsewhere in chapter 84.
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 GRIs may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the Harmonized System at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.
The HTSUS provisions under consideration are as follows:
Machine tools for working stone, ceramics, concrete,
asbestos-cement or like mineral materials or for cold
working glass:
Grinding or polishing machines:
8464.20.50 Other
* * * *
Machines and mechanical appliance having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances
Other:
Other:
8479.89.98 Other
* * * *
Other 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
Section XVI, Note 1(p), HTSUS, which includes Chapter 84, HTSUS, states that it does not cover articles of Chapter 95, HTSUS. Accordingly, in determining the proper classification of the rock tumbler kit, we must first determine whether it is a toy of heading 9503, HTSUS.
If the rock tumbler kit is a toy of heading 9503, HTSUS, it is not
necessary to consider whether the rock tumbler machine is described in headings 8464 or 8479 (or whether, as a GRI 3 set, the rock tumbler kit is classified heading 8464 or 8479).
Although the term "toy" is not defined in the HTSUS, the EN's to Chapter 95, HTSUS, provide that Chapter 95 covers toys of all kinds whether designed for the amusement of children or adults. Also, EN 95.03 provides that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons (children or adults). EN 95.03 also states that:
...Many of the toys of this heading are mechanically or electrically operated.
These include:
… (17) Educational toys (e.g., toy chemistry, printing, sewing and knitting sets). … Certain 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.
The EN for subheading 9503.70 states 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.
In this case, the rock tumbler kit is capable of polishing stones, so we must consider if it is an item of limited use of heading 9503, HTSUS. The Customs Court in Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33, C.D. 4688 (1977), has determined that when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement. It has been Customs’ position that the amusement requirement means that toys should be designed and used principally for amusement.
In HQ 953215 dated July 14, 1993, Customs considered whether a children’s lockstitch sewing machine was a toy for tariff purposes. We compared the capabilities of household sewing machines of heading 8452 to the children’s lockstitch sewing machine that was being considered. Based on the size and the operating capability, we determined that the children’s lockstitch sewing machine was a limited use toy classified in heading 9503, HTSUS. It was noted that the children’s lockstitch sewing machine weighed and cost considerably less than the typical household sewing machine. We also pointed out that the instructions accompanying the sample referred to it as a “toy” and stated that it had no serviceable parts. Moreover, the packing list for the children’s lockstitch sewing machine identified the machine as “plastic toy[s].” The children’s sewing machine was depicted in the submitted sales literature as a “toy”, and it had a red-white-blue-color scheme typical of the bright multicolored look of most toys.
In HQ 956534 dated October 6, 1994, Customs found that toy walkie-talkies were of such a low value, limited range, and limited durability relative to real walkie-talkies that the articles were designed principally for amusement, and thus were classified in subheading 9503.70.80, HTSUS, the provision for other toys put up in sets.
In HQ 965321 dated May 9, 2002, we considered whether a “Mr. Snowman Sno-cone” maker was classified in heading 9503, HTSUS as a toy or as a hand-operated mechanical appliance used in food preparation of heading 8210, HTSUS. We indicated that an examination of the sample demonstrated that the product appeared to be of the kind that are of limited use, food preparation articles, marketed and sold as toys, and which provided manipulative play and role-play for young children. The articles included with the set, such as two disposable cups and plastic spoons, suggested both the limited use and the low-volume sno-cone production of the article, typical for amusement activities for young children. In short, this product could not be confused with a "real" sno-cone maker that would typically have an electric motor and be designed to produce scores of sno-cones in a day. Therefore, we held that the “Mr. Snowman Sno-Cone” maker was classified in subheading 9503.90, HTSUS as a toy.
Since the rock tumbler kit will also be used for making jewelry, it appears that it is basically a craft making kit. In several previous rulings Customs has considered the classification of craft making sets. HQ 086421 dated May 16, 1990, addressed the classification of the "Things You Make" craft kit which consisted of two unassembled polyvinyl chloride coin purses, an unassembled polyvinyl chloride comb case, and an unassembled polyvinyl chloride picture frame. Two plastic needles and lacing were included so that a child could assemble the items. We determined that the individual components of the kit were put up together to provide amusement as toys classified in 9503.70.80, HTSUS. In HQ 958267 dated May 21, 1996, we determined that a jewelry making set known as "Fantastic Crystal Creations” was clearly designed for children. Although the articles, which a child created, could be used as jewelry or as decorative items for the home, we determined that the utility of the finished products was secondary to the play value of creating the products.
To better understand the product, we have reviewed various web sites regarding rock tumbling and have had discussions with retailers of rock tumblers. We were informed that the rock tumbling industry generally recognizes that there are two basic types of rotating rock tumblers on the market. The first type of rock tumbler is referred to in the industry as an educational toy model. This type of rock tumbler would be sold at toy stores or in toy departments. It generally has a small rotor power motor, which limits the size of the stones or rocks that can be polished. In addition, it is usually made of plastic and has a limited barrel capacity of 1 pound or less. The toy model version of a rock tumbler tends not to be very durable and typically does not last beyond a few uses. It cannot be easily repaired when it breaks.
The second type of rock tumbler is known in the industry as a professional/hobbyist model. This version can process a larger amount of stones ranging from 1½ pounds to 12 pounds. They have a more powerful continuous-duty fan motor, a molded rubber or rubber lined barrel with a quick seal leak-proof closure, and a sturdy metal base. Generally, they are sold at hobby or rock shops, and in some cases they are sold by professional jewelry or lapidary equipment suppliers. The retail price of a hobbyist version of a rock tumbler will start at about seventy dollars for the most basic model and will rise depending on a number of factors, including the capacity of the barrel and the size of the motor.
The hobbyist rock tumblers are not marketed as toys. In fact, the website for the Gem & Mineral Gallery of Newport Oregon states that “you won’t find any plastic constructed rock tumbler here! A rock tumbler is a machine not a toy…” Another website, www. Luckydan.com, commenting on the brand of rock tumblers that they sell, indicates that “they are not toys like you see in Wal-Mart.”
While both the subject rock tumbler and a professional/hobbyist rock tumbler, if given enough time, will produce shiny stones, it is clear that the subject rock tumbler is far less substantial and sturdy than a professional/hobbyist version of a rock tumbler. Based on the information obtained from various websites and retailers knowledgeable about rock tumblers, the sample rock tumbler under consideration would be considered by the rock tumbler industry as a toy model and not a professional/hobbyist model. Although the industry’s view of a product is not automatically determinative on how it should be classified in the HTSUS, it is a factor that should be given some weight in determining the proper classification of the article. In this instance, we note that there are a number of other factors that would seem to further indicate that the subject rock tumbler is an article of limited use, i.e., an item classified in heading 9503, HTSUS, as compared to a professional/hobbyist rock tumbler. Chief among these factors are that the subject rock tumbler is entirely made of a rather flimsy plastic and that it has a low power motor. It also has a limited capacity with the suggested load of stones that it can process being 8 oz. The total unit weighs only about two pounds. The flimsy plastic construction would seem to result in the subject rock tumbler having limited durability. More specifically, the subject rock tumbler’s plastic gearing is likely to wear out fairly quickly. Replacement parts for the rock tumbler probably could not be easily obtained so that once the rock tumbler does break, it is unlikely that it would be repaired. In addition, because of the plastic barrel, when the rock tumbler is being used, it will be highly noisy as compared to a professional/hobbyist model rock tumbler, where the barrel is often made of rubber. In addition, the retail cost of the subject rock tumbler is less than twenty dollars.
Heading 9503 is a "principal use" provision, insofar as toys should be designed and used principally for amusement. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Thus we will consider various factors, which are suggestive but not dispositive, when determining principal use for amusement including general physical characteristics. Such factors include the expectation of the ultimate purchaser, channels of trade, and the environment of sale (accompanying accessories, manner of advertisement and display). In viewing these factors, we note that the subject rock tumbler is clearly marketed as a toy rather than as an item for a hobbyist or for a professional jeweler. It is sold in the toy department. Numerous places on the retail packaging indicate that the product is an electrically operated toy, that it is “safe for kids” and it has an age recommendation that it should not be used by children under ten years of age. The instructions also state several times that the rock tumbler is a toy. In addition, the transformer included with the rock tumbler provides a warning that the product is an electrically operated toy. The retail packaging for the kit also shows children playing with polished stones and items that are contained in the kit.
We believe that there are aspects of play in the rock tumbling activity which persons and especially children would find amusing. There is an aspect of play in collecting and selecting of stones to be polished. Moreover, children may periodically want to see the progress being made in the polishing of the stones that they have selected. While these aspects of rock tumbling alone may not qualify it as an amusing activity, the rock tumbler kit in this case is intended for more than just polishing stones because it contains various other items that are used to create jewelry and key chains. The amusement is derived from manipulating the numerous polished stones with other pieces included in the kit to create jewelry and other trinkets that children can play with and wear. See NY A81901 dated April 23, 1996. Similar to other craft making kits that we have considered previously, the utility of the finished jewelry is secondary to the play value of creating the products. Therefore, we conclude that the principal use of the rock tumbler kit is for amusement, and thus it is provided for in heading 9503, HTSUS. Because the rock tumbler kit is a toy of heading 9503,
HTSUS, it is not provided for in headings 8464 or 8479, HTSUS. See Note 1(p) to Section XVI. The rock tumbler kit is classified in subheading 9503.70.00, HTSUS.
HOLDING:
The rock tumbler kit is classified in subheading 9503.70.00, HTSUS, the provision for “Other toys. . .parts and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof.”
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division