CLA-2 RR:TC:FC 958086 ALS
MS. Michele R. Markowitz
Attorney at Law
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad St.
New York, NY 10004
RE: Activity Sets For Children, Goop FX Detail Pens, Combination
Packages of Metal Molds and Official plasti-Goop
Dear Ms. Markowitz:
This is in reference to your request for a ruling on the
subject Goop FX detail pens, which was extended to cover activity
sets containing that product and metal molds with an oven and
combination packages containing metal molds and official plasti-Goop but without an oven. Samples of these products have been
furnished. We have met with importer representatives and a
member of your local office and have telephonically discussed the
issues with your local representative.
FACTS:
The Goop FX detail pens are designed to be used with
children's activity sets known as "Creepy Crawlers" (designed for
boys) and "Dolly Maker" (designed for girls). They are composed
essentially of a PVC resin, a plasticizer, silicone rubber powder
and pigment and comes in a variety of colors. The Goop FX, a
relatively thicker version of official plasti-Goop, which is used
to make various creatures and forms, is used to decorate those
items by adding stripes, dots, patterns, etc. to those
items before they are solidified in an oven. The official
plasti-Goop may be referred to by other names, e.g., Genuine
Glamor Goop, depending on the items with which it is packaged.
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The activity sets contain a molding oven, two metal molds
containing various shapes on each mold, e.g., insects in the case
of the Creepy Crawlers set, and four bottles of official plasti-Goop compound which is used to fill the shapes in the individual
molds, a mold handler, a prying tool and a cooling tray. The
"Dolly Maker" sets also contains doll stands, bendable wire
pieces and various accessories such as miniature shoes and purses
for the final solidified product. A child using the activity
sets would place a quantity of official plasti-Goop, perhaps
decorated with Goop FX, in the metal mold and then heat it in the
oven to make the desired product. After heating in the oven,
essentially a plastic box with a 60 watt light bulb which heats
the Goop until it solidifies, the plastic product is removed from
the mold and used by the child.
A variety of the molds, official plasti-Goop and Goop FX are
also packaged in various combinations, without the oven as well
as being separately sold. The oven is only available as part of
an activity set. The combination packages may also contain
various accessories for use with the items produced with the
molds and official plasti-Goop contained in a particular package.
Counsel advises us that the primary components of the
activity sets are the oven, the official plasti-Goop/Goop FX and
the metal molds and that the other items are merely ancillary to
those components. Counsel has also indicated that the official
plasti-Goop, Goop FX and molds are for use solely or principally
with the oven contained in the activity sets and that the
official plasti-Goop cannot otherwise be used since it will not
solidify by exposure to air or to heating in a regular oven. The
metal molds are designed to be used with a plastic mold handler
and to fit into a slot in the heating oven. Counsel believes
that the activity sets are toys and that the detail pens and the
items in the combination packages are accessories to the activity
sets and should be considered as toys whether or not packaged
with those sets.
ISSUE:
Are the subject items includable within the terms toys or
parts and accessories of toys?
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LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
In considering this matter we note that the oven provided in
the activity sets, whose heating mechanism is a 60 watt light
bulb, would be considered a toy in accordance with a note to
heading 9503 in the Explanatory Notes to the Harmonized System
(EN) relative to chapter 95. That note indicates that heading
9503 of the Harmonized System includes certain toys, e.g.,
electric irons, which may be capable of a limited "use" but are
generally distinguishable by their size and limited capacity from
the real item.
We also note that heading 9503, HTSUS, provides for "Other
toys...and accessories thereof," i.e., all toys not specifically
provided for in the other headings of chapter 95. Although the
term "toy" is not defined in the tariff, the EN to chapter 95
suggest that a toy is an article designed for the amusement of
children or adults. The EN to heading 9503 further indicates
that certain toys, including toy arms, tools, gardening sets, tin
soldiers, etc., are often put up in sets, and that collections of
items separately classifiable in other headings are classified in
chapter 95 when put up in a form clearly indicating their use as
toys (e.g., instructional toys such as chemistry sets, sewing
sets, etc.). The EN also state that heading 9503 excludes
children's picture, drawing or coloring books of heading 4903,
and crayons and pastels for children's use of heading 9609.
A subheading explanatory note to subheading 9503.70 states, in
pertinent part, that for the purposes of the subheading, "[s]ets"
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 facility the use of the articles may also be
included."
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In Headquarters Ruling Letter (HRL) 950700, dated August 25,
1993, we discussed the circumstances in which certain items may
be classified in subheading 9503.70, as toys put up in sets. We
stated that the application of the toy set provision is
relatively straightforward when each item within a set would
individually be classified as a toy, as opposed to an assortment
(such as in this case) which consists entirely (or partly) of
items that individually would be classified elsewhere in the
HTSUSA. In either case, we noted that subheading 9503.70,
encompasses a combination of two or more mutually complementary,
complete articles in a retail package, the essential character of
which is established by the combination of the items, not by any
individual item. No individual article should predominate over
any other in the combination, and the components should generally
be used together to provide amusement.
We initially considered the possible classification of the
primary components of the activity sets, i.e., oven, goop and
molds, if those items were separately imported and if it was not
clear that they were solely or principally for use with the sets.
We found that the "limited use" oven, would, in accordance with
the EN to chapter 95, supra, qualify as a toy classifiable in
subheading 9503.90.0030, HTSUSA, the provision for "...Other toys
(except models), not having a spring mechanism..." The metal
molds, which help produce a permanent product when the official
plasti-Goop is solidified by heating in the oven, and cannot then
be transformed into another item, would, because of such
permanency, be classifiable with industrial molds in subheading
8480.79.9090, HTSUSA, the provision for "molds for rubber or
plastics: Other types: Other, Other molds." Since the official
plasti-Goop/Goop FX is of rather thin consistency, we do not
agree with counsel that it would be includable in the provision
for modeling pastes in heading 3407. We believe that these
products which, as previously noted, are composed essentially of
a PVC resin, a plasticizer, silicone rubber powder and pigment
color, would be classifiable in subheading 3904.22.0000, HTSUSA,
which covers "Polymers of vinyl chloride...: Other polyvinyl
chloride: plasticized."
Therefore, it is necessary to refer to GRI 3 to classify
these activity sets. Since each heading refers only to a part of
the set, classification pursuant to GRI 3(a) is not possible.
Accordingly, we next refer to GRI 3(b) regarding articles put up - 5 -
in sets for retail sale. EN X to GRI 3(b) provides the criteria
for determining whether goods are to be considered to be "goods
put up in sets for retail sale." The activity sets meet 2 of
those requirements insofar as they contain articles classifiable
in different headings and are put up for sale in a manner
suitable for sale directly to users without repacking.
We note that EN VI to GRI 3(b) states that "the goods are to
be classified as if they consisted of the material of component
which gives them their essential character,..." EN VIII to that
GRI provides guidance as to the factors which determine the
essential character of goods. These include the nature of the
component, its bulk, quantity, weight or value, or by the role of
a constituent material in relation to the use of the goods.
While the oven is clearly the predominant item if we consider
bulk and value, we do not believe that item can be considered to
provide the essential character of the activity set. Similarly,
while the molds or plasti-Goop might predominate under other
criteria, particularly if one were to look at their role in
relation to the use of the goods, i.e., they are needed to
perform any activity, we do not believe that either of those
items gives the activity sets their essential character. While
no activity could be performed without them, no activity could be
performed without the oven. Accordingly, we have concluded that
the activity sets cannot be classified according to any one of
the above items and that they are all essential to the product.
Therefore, it is necessary to refer to GRI 3(c) which
provides that when goods cannot be classified by reference to GRI
3(a) or 3(b), they are to be classified in the heading which
occurs last in numerical order among those which equally merit
consideration in determining their classification. As noted
above, the goods which give the activity sets their substance are
the plastic material of chapter 39, the metal molds of chapter 84
and the "limited use" oven of chapter 95. Accordingly, we have
concluded that the activity sets should be classified in chapter
95. Classification in subheading 9503.90.0030, HTSUSA, which
covers the oven, is appropriate, in this case.
We next turn to the classification of the official plasti-Goop and Goop FX, when separately imported. The EN to heading
9503 provides that such heading covers identifiable parts and
accessories of the articles in that heading, which are suitable - 6 -
for use solely or principally therewith, provided they are not
excluded from chapter 95 by the Legal Note 1 thereto. We find
that these items are not so excluded. We further find that these
articles, which are parts of the sets when imported therewith,
are for use solely or principally with the sets when separately
imported, the official plasti-Goop is to replace a previously
used quantity of that product. Accordingly, these items are
classifiable under subheading 9503.90.0070, HTSUSA.
The metal molds, when separately imported, may similarly be
intended to replace molds which have become worn or damaged. It
is, however, more likely that they are to enhance the previously
purchased sets by providing an additional variety of shapes and
items that can be made with the official plasti-Goop and oven.
In such case the molds would be considered accessories to the
sets.
We note that groupings of the above items, except for the
oven, are also separately imported in combination packages.
Items so grouped would be classifiable in the same manner as when
those items are separately imported, as noted above.
Items in the sets, e.g., doll shoes, doll stands, would, be
includable in subheading 9503.90, HTSUSA, as constituents of the
set. Such items, when not imported with the activity set,
including the oven, would be classifiable in the specific
subheading relative to that item, e.g., 9502.91, HTSUSA, for doll
shoes. Since there appears to be a wide variety of such items,
which may or may not be solely or principally used with this
class of merchandise, we are not ruling on them at this time.
The importer should request a specific ruling on such items if
they will be imported in packages other than the complete sets.
HOLDING:
The articles identified as Dolly Maker and Creepy Crawlers
activity sets, containing official plasti-Goop/Goop FX, metal
molds and a heating oven for solidifying items and shapes made of
the plastic goop in such molds, are classifiable in subheading
9503.90.0030, HTSUSA. The subheading covers items described as
"Other toys; and accessories thereof: Other, Other: Other toys
(except models), not having a spring mechanism." Metal molds and
official plasti-Goop/Goop FX, which are solely or principally - 7 -
used with components of the aforementioned sets, are similarly
classifiable in subheading 9503.90.0070, HTSUSA, when
individually imported or imported in combination packages
containing more than one of those items, but not containing an
oven. Articles so classifiable are subject to a free rate of
duty.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division