CLA-2 RR:CR:GC 959232 MMC
Barry Levy, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004
RE: "Tattoo Graphix"; HQ 957894 revoked
Dear Mr. Levy:
On December 14, 1995, this office issued to you, on behalf
of Toy Max, Headquarters Ruling (HQ) 957894, in which Customs
classified an article known as "Tattoo Graphix," under subheading
3926.10.000 of the Harmonized Tariff Schedule of the United
States (HTSUS). Subheading 3926.10.0000, HTSUS, provides for
"[o]ther articles of plastics and articles of other materials of
headings 3901 to 3914: Office or school supplies." "Tattoo
Graphix" is composed of a plastic carrying case/storage
case/drawing surface (described as a "creepy crawlers Tattoo
machine"), six sheets of Tattoo designs, four non-toxic, colored
markers, thirty sheets of blank Tattoo paper, one plastic water
applicator bottle, and a sheet of instructions, all of which are
imported in a decorative cardboard box. This classification
resulted from a determination that "Tattoo Graphix" in its
entirety was not a toy set for tariff purposes and, that as a
General Rule of Interpretation (GRI) 3(b) set, the carrying case
clearly predominated over the other components used to trace,
draw, cut and transfer the decal to the user's moistened skin.
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 (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186),
notice of the proposed revocation of HQ 957894 was published, on
April 15, 1998, in the Customs Bulletin, Volume 32,
Number 15. No comments were received in response to the notice.
Upon further examination, we are of the opinion that "Tattoo
Graphix" is properly classified in heading 9503, HTSUS, which
provides for "[o]ther toys; reduced-size ("scale") models and
similar recreational models, working or not; puzzles of all
kinds; parts and accessories thereof."
FACTS:
The sample article, identified as item no. 7007, contains
the materials needed to "[m]ake lots of cool & creepy tattoos!"
The article is composed of a plastic carrying case/storage case/
drawing surface (described as a "creepy crawlers Tattoo
machine"), six sheets of tattoo designs, four non-toxic, colored
markers, thirty sheets of blank tattoo paper, one plastic water
applicator bottle, and a sheet of instructions, all of which are
imported in a decorative cardboard box. The article is designed
for use by children ages five and up. A child chooses a tattoo
design to place under the tattoo paper in the case's frame. The
design is then traced and colored on the tattoo paper and cut out
(scissors not included). After the child's skin is moistened,
the tattoo is placed on the skin, pressed or rubbed, then peeled
back to reveal the tattoo. A child may also create his/her own
designs. The retail package, which is suitable for direct sale
without repacking, measures approximately 14 inches in length by
10 inches in height by 2 inches in depth.
ISSUE:
What is the proper classification of "Tattoo Graphix?"
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI's). 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 and 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's may
then be applied. The relevant headings and subheadings
considered when classifying "Tattoo Graphix" were as follows:
3926 Other articles of plastics and articles of other
materials of headings 3901 to 3914
9503 Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all
kinds; parts and accessories thereof
* * * * *
9503.70 Other toys, put up in sets or outfits, and parts
and accessories thereof
The term "toy" is not defined in the HTSUS. However, in
understanding the language of the HTSUS, the Explanatory Notes
(ENs) of the Harmonized Commodity Description and Coding System
may be utilized. The ENs, although not dispositive or legally
binding, provide a commentary on the scope of each heading, and
are generally indicative of the proper interpretation of the
HTSUS. See, T.D. 89-90, 54 FR 35127, 35128 (August 23, 1989).
The ENs to Chapter 95 state, in pertinent part, that "[t]his
Chapter covers toys of all kinds whether designed for the
amusement of children or adults." Although not set forth as a
definition of "toys," we have interpreted the just-quoted passage
from the ENs as equating "toys" with articles "designed for the
amusement of children or adults," although we believe such design
must be corroborated by evidence of the articles' principal use.
When the classification of an article is determined with
reference to its principal use, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that, in the absence of
special language or context which otherwise requires, such use is
to be determined in accordance with the use in the United States
at, or immediately prior to, the date of importation, of goods of
that class or kind to which the imported goods belong, and the
controlling use is the principal use. In other words, the
article's principal use at the time of importation determines
whether it is classifiable within a particular class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides general criteria for discerning the principal use of an
article, it does not provide specific criteria for individual
tariff provisions. However, the U.S. Court of International
Trade (CIT) has provided factors, which are indicative but not
conclusive, to apply when determining whether merchandise falls
within a particular class or kind. They include: general
physical characteristics, the expectation of the ultimate
purchaser, channels of trade, environment of sale (accompanying
accessories, manner of advertisement and display), use in the
same manner as merchandise which defines the class, economic
practicality of so using the import, and recognition in the trade
of this use. United States v. Carborundum Company, 63 CCPA 98,
C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.
Tattoo Graphix's general physical characteristics, mainly
its bright colors and wash off tattoos, indicate that it was
principally used as a toy. Its manner of advertisement and
display further confirms its use as a toy in such phrases like
"Make lots of cool & creepy tattoos!" which appear on the box and
in the directions. Moreover, "Tattoo Graphix" was principally
used in the same manner as toys; meaning it was principally used
to employ imagination and to amuse by allowing a child to create
and then wear a temporary tattoo.
The ENs for heading 95.03 provide, in pertinent part, that:
[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).
With respect to toy sets, the ENs for subheading 9503.70
provide, in pertinent part, that:
"[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 facilitate the use
of the articles may also be included.
It is Customs position that "toys put up in sets or outfits"
(subheading 9503.70) is an eo nomine provision denoting a clearly
identifiable class or kind of goods. Consequently, goods may be
classified in subheading 9503.70 pursuant to GRI 1, and recourse
to the other GRI's, particularly the provisions of GRI 3 relating
to sets, is unnecessary. See, e.g., HQ 086407 of March 22, 1990,
HQ 086330 of May 14, 1990, and HQ 950700. Such sets typically
contain complementary articles intended for use together, rather
than individually, to provide amusement. However, there is no
requirement that the component of the set only be capable of use
together, and the ability of one or more of the components to be
used individually does not disqualify classification as a toy
set. It is sufficient that the components of the toy set
possess a clear nexus which contemplates a use together to amuse.
Because Tattoo Graphix's components combine a variety of
complete articles which are intended for use together to occupy
the user in a pleasant or enjoyable (i.e., amusing) way, "Tattoo
Graphix" meets the requirements for classification as a toy,
specifically a toy set. We note that in HQ 957894, we indicated
that "Tattoo Graphix" was not classifiable as a toy set because a
single component of the set, the carrying case, predominated over
the other set components. Further review of the HTSUS and the
EN's disclose no basis for imposing such a rule. Inasmuch as any
finding of a component's predominance would have no impact on a
finding that the components together constitute a collection of
articles designed and principally used for amusement, we have
determined this rule to be inappropriate.
As a result of finding "Tattoo Graphix" to be a toy properly
classified in Chapter 95, classification of the articles
elsewhere in the HTSUS is precluded. See Note 2(v) to Chapter
39, Additionally, we have previously noted that the manner in
which articles are packaged and sold in combination can convert
the articles from their design and use as articles classified
elsewhere in the HTSUS to toys (see HQ 950700). Such a
conversion occurred with respect to the various components in the
set at issue, a fact that was overlooked in HQ 957894.
HOLDING:
"Tattoo Graphix" is classifiable as a toy set under
subheading 9503.70.00, HTSUS, as [o]ther 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,
with a column one free rate of duty.
HQ 957894 is revoked. In accordance with 19 U.S.C.
1625(c)(1), this ruling will
become effective 60 days after its publication in the Customs
Bulletin. Publication of rulings or decisions pursuant to 19
U.S.C. 1625(c)(1) does not constitute a change of practice or
position in accordance with section 177.10 (c)(1), Customs
Regulations [19 CFR 177.10(c)(1)].
Sincerely,
John Durant, Director
Commercial Rulings Division