CLA-2 OT: RR: CTF: TCM: H254152 ERB
Mr. Joseph D. Paterick
Fashion Angels Enterprises
3511 W. Green Tree Road
Milwaukee, WI 53209
RE: Revocation of NY N248844; Tariff Classification of the Fashion Angels “Tapeffiti Design Guide Book”
Dear Mr. Paterick:
This is in response to your correspondence, dated May 6, 2014, on behalf of Fashion Angels Enterprises (Fashion Angels), requesting that U.S. Customs and Border Protection (CBP) reconsider New York Ruling Letter (NY) N248844, dated January 15, 2014. NY N248844 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the “Tapefffiti Design Guide” kit. We have reviewed NY N248844 and find it to be incorrect. A sample was provided for inspection and was used in this analysis. It is being returned with this ruling. This ruling revokes NY N248844.
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 of the proposed action was published in the Customs Bulletin, Vol. 29, No. 51, on December 23, 2015. No comments were received in response to the notice.
FACTS:
In NY N248844, CBP stated the following:
The “Tapeffiti Design Guide Book”, Item 11734, is designed for use by individuals ages 6 and older. The set is comprised of the following items: a spiral bound design guide book containing illustrated instructions and cut-out sheets, 15 rolls of fashion decal tape, and a manual tape cutting device referred to as a “tape dispenser”. The tape roll is placed on the cutting device’s spool so that the tape can be manually pulled over the cutting channel. By manually sliding the cutting edge through the cutting channel, the tape is cut to the desired length. The tape can then be affixed to the object that is to be decorated. In your letter, you propose that the “Tapeffiti Design Guide Book”, Item 11734, be classified in subheading 4903.00.0073, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Children's picture, drawing or coloring books”. However, the “Tapeffiti Design Guide Book” is marketed as a “set”. The articles are imported packaged together for retail sale. No components will be added subsequent to importation. In view of these facts, consideration was given to General Rule of Interpretation 3(b) (“GRI 3(b)”). Explanatory Note X to GRI 3(b) provides that for the purpose of this rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
(a) consist of at least two different articles, which are, prima facie, classifiable in different headings. (b) consist of products or articles put up together to meet a specific activity; and (c) are put up in a manner suitable for sale directly to users without repackaging (e.g. in boxes or cases or on boards). General Rule of Interpretation (“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. Goods that are, prima facie, classifiable under two or more headings, are classifiable in accordance with GRI 3, HTSUS. GRI 3(a) states in part that when two or more headings each refer to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific, even if one heading gives a more precise description of the good. The instant decorating set consists of at least two different articles that are, prima facie, classifiable in different subheadings. The set consists of articles put up together to carry out a specific activity (i.e., decal decorating). Finally, the articles are put up in a manner suitable for sale directly to users without repacking. Therefore, the set in question is within the term "goods put up in sets for retail sale." GRI 3(b) states in part that goods put up in sets for retail sale, which cannot be classified by reference to 3(a), are to be classified as if they consisted of the component which gives them their essential character. Inasmuch as no essential character can be determined, GRI 3(b) does not apply. GRI 3(c) says that, if neither GRI 3(a) nor GRI 3(b) applies, merchandise shall be classified in the heading which occurs last in numerical order among those equally meriting consideration. After reviewing your submission, this office is of the opinion that subheading 4903.00.0000, HTSUS (the book), subheading 3919.10.2055, HTSUS (the rolls of tape) and subheading 8479.89.9899, HTSUS (the cutting device) merit equal consideration.
In accordance with GRI 3(c), the applicable subheading for the “Tapeffiti Design Guide Book”, Item 11734, will be 8479.89.9899, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere (in chapter 84): Other machines and mechanical appliances: Other: Other: Other: Other”. The rate of duty will be 2.5 percent ad valorem.
As noted above, a sample was provided to this office with the request for reconsideration. The subject merchandise is packaged containing three items: (1) a spiral bound design book, composed of cardboard and paper, (2) twelve (12) rolls of thin plastic adhesive tape, and (3) a plastic manual tape cutting device. The packaging of the sample provided to this office states that the product is recommended for ages 6 and up.
The design book features 35 pages and is attached to the heavy duty cardboard backing via a spiral binding. It has a snap feature which allows users to secure the design book closed to the cardboard back cover. The design book contains brightly illustrated instructions (there are few verbal instructions given for the crafts depicted, directions are nearly all pictorial), young girls modelling items created with the tape, inspiration ideas for the user, and interactive pages (templates) upon which the user may place the tape to fill out certain patterns and subsequently cut out and play with, use, or wear. A perusal of various online stores indicates that Fashion Angels Tapeffiti brand offers a variety of similar kits, each revolving around decorating objects with the tape, and children or young girls are the targeted audience.
Each of the twelve roles of adhesive tape are three-quarters of one inch (3/4 inch) in diameter, one half an inch (1/2 inch) in width, and has 9 feet of tape. Each roll also features a different design or pattern that can be used in the manner depicted in the design book, as well as on the design pages. Refills or replacements of the tape are available for sale by Fashion Angels.
The cutter is composed of plastic, and has a small spool upon which three rolls may be held simultaneously. The user will unspool or unwind the tape and pull it over the cutting channel, slide the cutting edge through the cutting channel so the tape is cut to the desired length. The cutter is 3 1/8 inches in length and 3 1/8 inches in width. It is very lightweight and insubstantial. The cutting blade is fully enclosed and safe for a child’s use, but it does not cut cleanly or evenly given the safety blade. Children or adults could use a pair of scissors to cut the tape just as easily. Furthermore, to fulfill some of ideas on the inspiration pages, children would not use the cutter at all, but would have to use scissors or another cutting device.
Fashion Angels asserts that the correct classification is under subheading 4903.00.00, HTSUS, which provides for “Children’s picture, drawing or coloring books.”
ISSUE:
What is the tariff classification of the subject “Tapeffiti Design Guide Book,” Item number 11734, which is comprised of a spiral bound design guide book, twelve rolls of fashion tape, and a manual tape cutting device, under the HTSUS.
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 HTSUS heading provisions under consideration in this case are as follows:
3919 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls
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4903 Children’s picture, drawing or coloring books
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8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
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9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls; other toys; reduced-size (“scale”) models and similar recreational models working or not; puzzles of all kinds.
Note 4 to Chapter 95 provides the following:
Subject to the provisions of Note 1 above, heading 9503 applies, inter alia, to articles of this heading combined with one or more items which cannot be considered as sets under the terms of General Interpretive Rule 3(b), and which, if presented separately would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See IT.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The ENs to 95.03 (D) elaborated on the scope of “Other toys”:
This group covers toys intended essentially for the amusement of persons (children or adults).
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These include:
(xviii) Educational toys (e.g. toy chemistry, printing, sewing and knitting sets).
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(xx) Books or sheets consisting essentially of pictures, toys or models, for cutting out and assembly; also books containing “stand-up” or movable figures provided they have the essential character of toys…
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Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this heading when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).
Also, as provided by Note 4 to this Chapter, subject to Note 1 to this Chapter, this heading includes articles of the heading combined with one or more items which would be classified in other headings if presented separately, provided that:
The combined items are put up together for retail sale, but the combination cannot be considered as a set under the terms of General Interpretative Rule 3(b); and
The combination has the essential character of toys. Such combinations generally consist of an article of this heading and one or more items of minor importance (e.g., small promotional articles or small amounts of confectionary.)
Heading 9503, HTSUS, is the provision for “other toys”. The term “toy” is not defined in the tariff. As such, CBP is tasked with determining the scope of the term by relying upon its own understanding of the term, and by consulting dictionaries, lexicons, and other reliable sources. Medline Indus. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995). "[T]he meaning of a tariff term is presumed to be the same as its common or dictionary meaning." Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988) (citations omitted), cert. denied, 488 U.S. 943, 109 S. Ct. 369, 102 L. Ed. 2d 358 (1988). Webster's Third New International Dictionary of the English Language Unabridged (1981) at 2419, provides, in relevant part that "toys" are:
3a: something designed for amusement or diversion rather than practical use b: an article for the playtime use of a child either representational (as persons, creatures, or implements) and intended esp. to stimulate imagination, mimetic activity, or manipulative skill or nonrepresentational (as balls, tops, jump ropes) and muscular dexterity and group integration. . . .
Merriam Webster's Collegiate Dictionary (1998) at 41, defines "amusement," in relevant part," as: "3: a pleasurable diversion." This common meaning of toy—an object primarily designed and used for pleasurable diversion—is consistent with judicial interpretation. See Processed Plastic Co. v. United States, 473 F.3d 1164, 1170 (Fed. Cir. 2006) (noting that the principal use of a "toy" is amusement, diversion, or play value rather than practicality); Minnetonka Brands, Inc. v. United States, 24 CIT 645, 651, ¶37, 110 F. Supp. 2d 1020, 1026 (2000) (noting that for purposes of Chapter 95, HTSUS, "an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality").
Although neither heading 9503, HTSUS nor the relevant chapter notes explicitly state that an item's classification as a "toy" is dependent upon how it is used, the courts have found inherent in the above definitions the concept that an object is a toy only if it is designed and used for diversion, amusement, or play, rather than for practical purposes. The CIT specifically concluded that heading 9503, HTSUS, is a "principal use" provision as it pertains to "toys." See Minnetonka Brands, Inc., 110 F. Supp. 2d at 1026, ¶ 37 (construing 9503 as a "principal use" provision). As such, classification under this provision is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of importation, and the controlling use is the principal use. See Additional US Rule of Interpretation 1(a). The CIT has stressed that it is the principal use of the "class or kind of goods to which the imports belong[ed]," at or immediately prior to the dates of importation, "and not the principal use of the specific imports[,] that is controlling under the Rules of Interpretation." Grp. Italglass U.S.A., Inc. v. United States, 17 CIT 1177, 1177, 839 F. Supp. 866, 867 (1993). "Principal use" is defined as the use "which exceeds any other single use of the article." Conversion of the Tariff Schedules of the United States Annotated Into the Nomenclature Structure of the Harmonized System: Submitting Report at 34- 35 (USITC Pub. No. 1400) (June 1983). Ultimately, the "class or kind" of articles considered to be "toys" under heading 9503 are articles whose principal use is for amusement, diversion, or play of children or adults. This use must exceed any other single use of that class or kind of article, such as practicality or utility.
The subject merchandise is an educational toy in accordance with the CIT’s decision in Minnetonka Brands, Inc. v. United States, 24 C.I.T. 645, supra., and is progeny. Its principal use is as a toy and the value of the items individually is subservient to the play value of all of the items used together.
As noted, the book is largely pictorial and in cases where there are step-by-step instructions, they don’t number more than a few steps and are accompanied by pictures. In circumstances where the child does not follow the book exactly, the opportunity to twist or manipulate the tape into shapes or onto objects provides an opportunity for play utilizing the child’s imagination and creativity. If the child does follow the instructions this play will lead to learning basic skills: design of various objects, following step-by-step directions, and creating small crafts. The child derives amusement value from the creation of the products and the amusement exceeds the utilitarian function of any of the items decorated. Completed projects or assembled crafts utilizing the tape (for example, a mask template whereby the user places tape on the guide and cuts it out with scissors from the book), will be flimsy given the material and it is unlikely the child will keep the product for very long. An object, such as a phone case or a picture frame, decorated with the tape may last longer. Furthermore, the practicality of the finished product is secondary to the play value of creating that object. See Spring Creative Prods. Group v. United States, 35 Int’l Trade Rep. 1955 (Ct. Int’l Trade Aug. 16, 2013). The merchandise is sold in toy stores, or alongside other items that would be recognizable as toys. For example, one large online retailer sells the product, and other similar Fashion Angels products, under its “Toys and Games” section, specifically, it is available under “Kids Arts and Crafts.”
In NY H86941, dated January 24, 2002, this office distinguished among multiple activity kits for children which contained books and supplies. The “Paper Punch Art” kit contained an idea book, plastic container that held four paper punches, and colored or patterned paper to be used with the punches. There, CBP determined that the activity kit did not provide play or amusement. Conversely, the “Paper Clip Jewelry Kit” was determined to be a classic educational toy which taught manipulative play. In comparing these kits to the instant Fashion Angels kit, the Tapeffiti Design Guide provides similar amusement value as the paper clip jewelry kit because it takes advantage of a child’s natural curiosity and desire to role-play at design, art, crafting, or fashion.
HQ H154039, dated May 27, 2011 is also instructive here. In classifying the “Giant Art Jar” (consisting of 26 ABC felt shapes, 15 wooden craft sticks, 40 wiggly eyes, 15 wooden buttons, 7 spools, 30 buttons of assorted shapes, confetti, 10 colored sheets of paper, 6 colors of crepe paper, white craft glue, glitter glue, craft scissors, 3 paper plates, 3 paper bags, 15 feathers, 78 assorted pom-poms, 2 ricrac, 10 pipe cleaners, sequins and 6 foam shapes) this office noted that this kit was a collection of disparate items that could be used for various crafts. A menagerie of general craft supplies is distinguishable from a kit which contains a precise amount of materials to create a single or a finite number of items or toys. Ultimately, this office ultimately classified each item in the Giant Art Jar individually.
In the instant case, the printed fashion tape and its corresponding cutter and idea book, is exclusively focused on crafts that utilize the tape in creative designs and projects depicted in the book. It also contains about the amount of tape needed for the projects described and labelled in the book. Since the cutter is particularly flimsy, it is likely that the child would have amused him/herself decorating or creating a few items over the course of a few sittings and would subsequently discard the cutter and possibly the book, and use up the tape. Like other Tapeffiti craft kits classified as toys, it is composed of several articles, all essentially designed for the amusement and creativity of children over a short duration of time. See EN 95.03(D) subsection (xviii) which includes educational toys, and subsection (xx) which provides for books made for cutting out and assembly. And see Spring Creative Prods. Group v. United States, 35 Int’l Trade Rep. 1955 *25 - 26 (Ct. Int’l Trade Aug. 16, 2013), (citing CBP rulings classifying craft kits designed for children to create, produce or assemble articles, NY N044840, dated December 5, 2008 (“My Super Knot-a-Quilt”); NY N004742, dated January 22, 2007 (“Begin to Crochet Kit” to make a stuffed pillow, and “Crochet Fun Kit” to make a handbag or scarf); and NY J89344, dated October 7, 2003 (“Make Your Own Fleece Pillow”). See also NY N244536, dated August 15, 2013 (classifying “Tapeffiti Fashion Design kit” in subheading 9503.00.00).
This Tapeffiti Design Guide kit is an educational toy, consistent with CBP’s prior rulings addressing similar issues. It encourages self-learning, direction following as well as fostering imagination, and supporting manipulative play value. See HQ H195956, dated February 27, 2012 (classifying a child’s “Science Kit”). CBP has also previously classified substantially similar merchandise, that is, kits including an idea book or a design book, assorted rolls of decorative Tapeffiti tape, a tape dispenser, and in some cases, an object to decorate, as a toy. See NY N246510, dated October 22, 2013 (classifying a “Tapeffiti” jewelry craft kit); NY N248809, dated January 15, 2014 (classifying “Tapeffiti Eyeglass Designer” craft kit); NY N244554, dated August 20, 2013 (classifying “Tapeffiti Models to the Runway kit”); NY N244719, dated August 20, 2013 (classifying “Tapeffiti” headband craft kit); NY N244725, dated August 20, 2013 (classifying a “Tapeffiti: bracelet craft kit); As the subject merchandise is classified pursuant to GRI 1, as a “toy”, analysis pursuant to GRI 3 is unnecessary.
HOLDING
By application of GRI 1, the subject merchandise is classified under heading 9503, HTSUS. Specifically, it is provided for under subheading 9503.00.0073, HTSUSA (Annotated), which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced scale models, working or not; puzzles of all kinds; parts and accessories thereof: “Children’s products” as defined in 15 U.S.C. § 2052: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” The column one duty rate is free.
EFFECT ON OTHER RULINGS
New York Ruling Letter N248844, dated January 15, 2014, 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