CLA-2 OT:RR:CTF:TCM H050118 AP
Marcus Lynn Brumley
N.A. Import Manager
Amazon.com.kydc
C/o Amazon.com Int’l Trade
605 5th Avenue South
Seattle, WA 98104
RE: Classification of an Aquadoodle Wall Mat from China; Revocation of NY N014467
Dear Mr. Brumley:
This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (NY) N014467, issued to you on July 24, 2007. In NY N014467, we determined that an Aquadoodle Wall Mat from China was classified under subheading 9503.00.0080, Harmonized Tariff Schedule of the United States (“HTSUS”). CBP has determined that NY N0144467 is incorrect. Therefore, this ruling revokes NY N014467.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N0144467 was published on June 9, 2010, in Volume 44, Number 24, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
The item at issue is identified as an Aquadoodle Wall Mat, which is composed of a textile fabric mat and a marker pen intended to be filled with water before use. In NY N0144467, relying on information provided by the requestor, CBP described the merchandise as follows:
The mat can be placed on any hard surface by means of adhesive stickers. Between the pad and the plastic sheeting is a water-activated ink pad. The child, using the accompanying water pen, can apply water to the pad to make ink colors appear. The child can either draw free-lance or use plastic stencils provided in the set to apply specific shapes to the mat.
When the water-filled pen touches the mat, the water causes the mat to change color and the child can write or draw on the mat without making a mess. When the water dries, the marks on the mat disappear and the child can draw on a clean mat again. The Aquadoodle Wall Mat is intended to be hung on a wall instead of being used on a floor.
In Headquarters Ruling Letter HQ W968020, dated May 31, 2006, we concluded that Aquadoodle Draw and Doodle floor mats are classified under subheading 6307.90.9889, HTSUS, as an “other textile made-up article” and not under subheading 9503.00.0080, HTSUS. The Aquadoodle Wall Mat is identical to the Aquadoodle Draw and Doodle floor mat. On the importer’s website, Spin Master states “The New Wall Mat is the same great doodling fun, but now on the wall.”
ISSUE:
Whether the subject Aquadoodle Wall Mat is classifiable as a textile article in heading 6307, HTSUS, or as a toy in heading 9503, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is governed by the General Rules of Interpretation (“GRIs”), which need to be applied in numerical order. 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, and, provided such headings or notes do not otherwise require, according to the remaining GRIs taken in order. In other words classification is governed first by the terms of the headings of the tariff schedule and any relative section or chapter notes.
In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) may be used. The ENs, even though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the harmonized system at the international level. CBP believes that ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Since the Aquadoodle Wall Mat consists of a mat and a pen, which are prima facie classifiable in different headings in the HTSUS (i.e., the marking pen in heading 9608 and the wall mat conceivably in 6307), GRI 3 is implicated. Its relevant portions read as follows:
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The GRIs do not define the terms “retail sale” and “essential character” but the ENs suggest a list of factors to consider. EN X to GRI 3(b) defines “goods put up in sets for retail sale” as goods which consist of: (1) at least two different articles which are, prima facie, classifiable in different headings; (2) products or articles put up together to meet a particular need or carry out a specific activity; and (3) products put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
EN VIII to GRI 3(b) states:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
The Aquadoodle Wall Mat qualifies as a set for retail sale under GRI 3(b). The mat and the water pen are put up together to carry out the specific activity of drawing and in a manner suitable for sale directly to users without repacking. The wall mat gives the set its essential character because it cannot function without the mat. The mat performs the primary function, which is to provide a surface that allows for coloring or drawing. The water-activated ink pad is part of the wall mat. The marker pen merely facilitates that activity and is designed to be used in conjunction with the mat. Since the essential character is conveyed by the wall mat, the merchandise is therefore properly classified in accordance with that component.
The provisions at issue are the following:
6307 Other made up articles, including dress patterns:
6307.90 Other:
Other:
6307.90.98 Other …..
Other:
6307.90.9889 Other …..
* * *
9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys: reduced-scale (“scale”) models, working or not; puzzles of all kinds; parts and accessories thereof:
9503.00.0080 Other …..
In NY N014467, CBP classified the subject merchandise in Chapter 95, HTSUS, which covers toys of all kind designed for amusement of children or adults. The tariff schedule does not define the term “toy.” A tariff term that is not defined in the HTSUS is construed in accordance with its common and commercial meaning. See Intercontinental Marble Corp. v. United States, 27 CIT 654, 657 (2003). Common and commercial meaning may be determined by consulting dictionaries. See Minnetonka Brands v. United States, 24 CIT 645, 649 (2000).
The Compact Oxford English Dictionary defines “toy” as an “object for a child to play with” or as a “gadget or machine regarded as providing amusement for an adult.” Courts have concluded that an object is a “toy” of heading 9503, HTSUS, if it is designed and used for amusement, diversion or play, rather than practicality. See Minnetonka Brands, Inc., 24 CIT at 651 (citing to Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998)). The determinative issue is whether the principal use of the article is to amuse. See United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, 158, C.A.D. 1022 (1971). CBP has interpreted the amusement requirement to mean that toys should be designed and used principally for amusement. See HQ H037544, dated September 3, 2009.
“Principal use” is defined as the use “which exceeds any other single use of the article.” Minnetonka Brands, Inc., 24 CIT at 651. Factors, which have been considered to make this determination include the general physical characteristics of the merchandise, the expectations of the ultimate purchasers, the design and marketing of the merchandise as an item of amusement, the expectations of the ultimate purchasers that the object will be used for play, and the regular use of the merchandise by children for amusement purposes. See id. When articles are both amusing and functional, we need to determine whether amusement is incidental to the utilitarian purpose and vice versa. See Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 32, Cust. Dec. 4688 (1977).
The Aquadoodle is designed to be a drawing instrument. Drawing and coloring are activities capable of providing amusement. However, the ENs exclude from heading 9503, HTSUS, many articles that are used in drawing, coloring and other art activities. EN 95.03 states, in part, that heading 9503 excludes:
Paints put up for children’s use (heading 32.13).
Modelling pastes put up for children’s amusement (heading 34.07).
Children’s picture, drawing or coloring books of heading 49.03.
Transfers (heading 49.08).
Bells, gongs or the like, of heading 83.06.
Card games (heading 95.04).
Paper hats, “blow-outs”, masks, false noses and the like (heading 95.05).
Crayons and pastels for children’s use of heading 96.09.
Slates and blackboards, of heading 96.10.
In HQ W968020, dated May 31, 2006, in applying the ENs, we found that the Aquadoodle Mat was designed to be colored with the included water markers and it was not a toy because it was designed for purposes of drawing. We concluded that the amusement from art-related activities is secondary to utility, because sets used for drawing and coloring are not “essentially playthings.” Id. Children’s play may include drawing or painting. However, materials for drawing or painting are not classified in heading 9503, HTSUS. See HQ 966724 dated May 24, 2004. Therefore, the Aquadoodle Mat is provided for, eo nomine (e.g., refers to a commodity by a specific name, usually one well-known in commerce), in headings other than heading 9503, HTSUS.
Heading 6307, HTSUS provides for classification of “other textile made-up articles.” The wall mat is a textile fabric mat. We have previously determined that an Aquadoodle floor mat is classified in subheading 6307.90.9889, HTSUS. See HQW968020 dated May 31, 2006. The Aquadoodle Wall Mat is identical to the floor mat. The only difference is that the wall mat is intended to be hung on a wall instead of being used on a floor. Accordingly, the Aquadoodle Wall Mat is classified in heading 6307, HTSUS.
HOLDING:
Pursuant to GRIs 1 and 3(b), the subject merchandise, identified as Aquadoodle Wall Mat, is classified in heading 6307, HTSUS. Specifically, it is classified in subheading 6307.90.9889, HTSUS, which provides for “Other made up articles, including dress patterns: other: other: other: other: other. The general, column one applicable rate of duty is 7 percent ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N014467, dated July 24, 2007, is REVOKED. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division