CLA-2 OT:RR:CTF:TCM H037544 ASM
Ms. Christina Yun
Director of Operations Logistics
M.Z. Berger & Company
29-76 Northern Blvd, LIC, NY 11101
RE: Request for reconsideration of NY N030268; Tariff Classification of
“Floating Art Castle”
Dear Ms. Yun:
This is in response to a request for reconsideration made on behalf of M.Z. Berger & Company, concerning U.S. Customs and Border Protection (CBP) New York Ruling letter (NY) N030268, dated June 18, 2008, which classified the “Floating Art Castle” (identified in NY N030268 as the “Floating Art Desk”) under the Harmonized Tariff Schedule of the United States (HTSUS). In NY N030268 CBP classified the subject merchandise as a set in accordance with GRI 3(b) under heading 3926, HTSUS, which is the provision for “Other articles of plastics and articles of other materials of heading 3901 to 3914”. You believe that the merchandise should be classified under heading 9503, HTSUS, as a toy.
FACTS:
The product at issue is marketed and sold as an “erasable drawing board that floats in the tub”. It consists of a lightweight plastic desk, 3 soap crayons composed primarily of kaolin (31 percent) and beeswax (20 percent), and 2 ethylene vinyl acetate (EVA) foam coloring sheets printed with Disney™ characters. The desk has a detachable plastic frame shaped in a castle motif. In addition, the desk has a storage compartment, a pull-out drawer that can hold the crayons and EVA foam coloring sheets. The top of the desk has been decorated with colorful Disney™ Princess characters. All the items are packaged together in a cardboard and cellophane display box that has printed on it the Disney™ logo and the name “Floating Art Castle”. A sample has been submitted to CBP for examination.
ISSUE:
Whether the “Floating Art Castle” is classified as a plastic office or school supply under heading 3926, HTSUS, or whether it is a toy of heading 9503, HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). 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 following headings of the HTSUS are under consideration in classifying the subject article:
Other articles of plastics and articles of other
materials of headings 3901 to 3914:
3926.10.0000 Office or school supplies
9503.00.00 Tricycles, scooters, pedal cars and similar wheeled
Toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
9503.00.0080 Other
You assert that the subject article is a “toy” classifiable in heading 9503.00.00, HTSUS. You contend that the “Floating Art Castle” is used only in the bathtub, that the “Crayon” is a soap ingredient designed to be used only during bath time, and the two EVA foam printed coloring sheets are designed to float and are to be used only during bath time. You further note that the article is not marketed or sold in any art supply store or in the art supply areas of stores but is sold in the bubble bath location of the store.
The term "toy" is not defined in the HTSUS. To be a toy, the "character of amusement involved [is] that derived from an item which is essentially a plaything." Wilson’s Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967). The General Explanatory Note (EN)1 for Chapter 95 states that this "Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although nothing in heading 9503 or the relevant Chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade (CIT) has found inherent in various dictionary definitions of "toy" the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality.
In the case of Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000), the court classified full-figured, three-dimensional, plastic objects in the form of well-recognized children’s characters as ". . . [t]oys representing animals or non-human creatures . . . Other" under subheading 9503.49.00, HTSUS, the court found that an object must be designed and used for amusement, diversion or play, rather than practicality in order to be classified as a "toy" of heading 9503, HTSUS. In Minnetonka, the CIT further noted that because heading 9503, HTSUS, is, in relevant part, a principal use provision, 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. See Additional U.S. Rule of Interpretation 1(a), HTSUS. It has been CBP’s position that the amusement requirement means that toys should be designed and used principally for amusement.
For articles that are both amusing and functional, we look to Ideal Toy Corp. v United States, 78 Cust. Ct. 28 (1977), in which the court stated that "when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement." Drawing
and coloring are activities capable of providing amusement, but 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:
(a) Paints put up for children’s use (heading 32.13). (b) Modelling pastes put up for children’s amusement (heading 34.07). (c) Children's picture, drawing or colouring books of heading 49.03.
(d) Transfers (heading 49.08).
* * *
(ij) Crayons and pastels for children's use, of heading 96.09.
__________________
1 The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The above-listed articles are provided for, eo nomine, in headings other than heading 9503, HTSUS. To that end, CBP has long construed the scope of heading 9503, HTSUS, to exclude such articles and sets. In CBP Headquarters Ruling Letter (HQ) W968020, dated May 31, 2006, we found that the “Aquadoodle” fabric mat that was designed to be colored with the included water markers was not a toy as it was designed for purposes of drawing. CBP concluded that “[t]he amusement derived from art-related activities is secondary to utility because those articles and sets used for drawing, coloring, and other art-related activities are not ‘essentially playthings’.” In HQ 967798, dated February 28, 2006, CBP ruled that the “Graffiti Gear” drawing set was not a toy set because coloring lacked manipulative play value.
While the subject plastic desk may be used in the tub, the primary use of the merchandise is to facilitate and encourage drawing and coloring, i.e., the creation of art, which is evidenced by the retail name, “Floating Art Castle”. The artistic use of this article is further evidenced by the special picture frame attached to the desk, which according to the packaging is designed to “Display your art”. Regardless of whether the plastic desk is used in the tub, table, or floor, the product is primarily a functional art/writing desk. Based on these facts, we find that the “Floating Art Castle” cannot be classified as a toy under heading 9503, HTSUS.
The subject article cannot be classified in accordance with GRI 1 pursuant to the terms of the headings and relevant Section or Chapter Notes, as there is no heading which covers all of the different components. Separately, the plastic desktop is classified in heading 3926, HTSUS, which provides for “Other articles of plastics”. CBP considers it to be in the same class or kind as other portable desks or lap desks made of plastic, which have been consistently classified in subheading 3926.10.00, HTSUS. See NY F83540, dated March 20, 2000; NY I89599, dated January 16, 2003; NY J88091, dated September 3, 2003; NY J88500, dated October 1, 2003; NY I88515, dated December 3, 2002; NY I88983, dated December 9, 2002; K83179, dated March 1, 2004; NY L83237, dated March 30, 2005; and NY N031137, dated July 15, 2008. The EVA foam sheeting is classifiable in heading 3921, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics”, and the soap crayons are classified in heading 3401, HTSUS, which provides for “Soap”.
Since the subject components are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3, which provides, in relevant part:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) 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 if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
* * *
The EN to GRI 3(b) states:
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) 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.
* * *
For the purposes of this Rule, the term “goods put up in sets
for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are,
prima facie, classifiable in different headings.
Therefore, for example, six fondue forks cannot be
regarded as a set within the meaning of this Rule;
consist of products or articles put u[p together to
meet a particular need or carry out a specific activity;
and
are put up in a manner suitable for sale directly to
users without repaking (e.g., in boxes or cases or on
boards).
In this case, each of the possible headings refers to only some of the components of the subject merchandise. Therefore, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. In accordance with GRI 3(b), we find that the subject article is properly classified as a “set” because it consists of goods put up in a set for retail sale which are, prima facie, classifiable in different headings. Furthermore, these goods have been put up in a cardboard and cellophane container suitable for sale directly to users without repacking and the set consists of articles that are put up together to carry out the specific activity of “coloring”. This determination is consistent with our decision in CBP Headquarters Ruling Letter (HQ) 965295, dated September 11, 2002, wherein retail packaged goods consisting of a 48-page instruction book and four specialized paper punches were found to be “goods put up in sets for retail sale” within the meaning of GRI 3(b).
There have been numerous court decisions on “essential character” for purposes of GRI 3(b). For example, in the recent case of Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005), the CIT classified a photo frame with a plate glass cover, a masonite back and four metal clips, pursuant to a GRI 3(b) analysis in subheading 4414.00.00, HTSUS, which provides for “Wooden frames”. The court found that the masonite backing imparted the essential character of the frame because without the back, photographs could not be displayed. Although the cost of the clips was greater than the other components, cost alone was not dispositive. The glass cover also did not provide the essential character, mainly because the frames could function without the glass cover.
In the subject case, the plastic desktop performs the primary function, i.e., to provide a hard, flat surface that allows for coloring or drawing. The additional components, PVA foam sheets and soap crayons, merely facilitate that activity and are designed to be used in conjunction with or stored in the desk. Furthermore, the desk can function as a writing/drawing surface even without the additional components. As such, the essential character is conveyed by the plastic desk and the merchandise is therefore properly classified in accordance with that component.
In view of the foregoing, we find that the “Floating Art Castle” is properly classified as an “Other article of plastic” in heading 3926, HTSUS.
HOLDING:
The subject merchandise, identified as the “Floating Art Castle”, is correctly classified in subheading 3926.10.00, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies”. The general column one rate of duty is 5.3 percent ad valorem.
Please note that the duty rates set forth in this ruling letter are merely provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N030268, dated June 18, 2008, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division