OT:RR:CTF:CPMMA H317395 MAB
TARIFF Nos.: 4202.32.1000; 9017.80.0000; 8214.10.0000; 9608.20.0000; 3926.10.0000; 9609.10.0000; 4911.91.4040; 4820.10.2020; 4820.10.2060
Ms. Jeannine Greener
Air Tiger Express, (USA) Inc.
18343 8th Avenue South
Seattle, WA 98148
RE: Affirmation of NY N312428; tariff classification of a coin purse and school supplies from China
Dear Ms. Greener:
This is in reply to your letter, dated September 17, 2020, in which you request reconsideration of New York Ruling Letter ("NY") N312428, dated July 8, 2020, issued to your client, Moose Toys LLC, by U.S. Customs and Border Protection ("CBP"), concerning the tariff classification of a coin purse and school supplies from China under the Harmonized Tariff Schedule of the United States ("HTSUS"). We have reviewed NY N312428, together with the information in your request for reconsideration, and have found the ruling to be correct for the reasons set forth below.
The subject merchandise is described in NY N312428 as follows:
The article at issue, item number 25261/25262, consists of a novelty coin purse,
a ruler, a sharpener, a highlighter, an eraser, a tape dispenser, a pencil, a sticker
sheet, a sticky notes memo pad, and a notebook. The coin purse is made-up to
emulate a mini-backpack. Per your email correspondence, the coin purse is
constructed with an outer surface of plastic sheeting that is reinforced with a
a textile backing. The coin purse is designed to provide storage, protection,
organization, and portability to coins. The article has a zippered closure and a
front zippered pocket.
You suggested that the subject merchandise should be classified as toys in subheading 9503.00.0073, HTSUSA ("Annotated"), which provides for "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...'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." However, as none of the components in item numbers 25261 and 25262 are classifiable as toys, they were excluded from classification in heading 9503, HTSUS. While recognizing that the components are packaged and sold together, CBP determined that the products did not meet the definition of a set pursuant to the requirements of General Rule of Interpretation ("GRI") 3(b). Instead, CBP found the contents were disparate school supplies that are not dedicated to a specific activity. Moreover, regardless of their size, school supplies are not the types of articles normally carried in a coin purse. Therefore, pursuant to GRIs 1, 3(b) and 6, CBP found that each article was properly classified separately as follows:
The subheading for the coin purse is 4202.32.1000, HTSUSA, which provides for articles of a kind normally carried in the pocket or handbag, with outer surface of plastic sheeting, of reinforced or laminated plastics.
The subheading for the ruler is 9017.80.0000, HTSUSA, which provides for drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof: Other instruments.
The subheading for the sharpener is 8214.10.0000, HTSUSA, which provides for other articles of cutlery (for example, hair clippers, butchers' or kitchen cleavers, chopping or mincing knives, paper knives); manicure or pedicure sets and instruments (including nail files); base metal parts thereof: paper knives, letter openers, erasing knives, pencil sharpeners (non-mechanical) and blades and other parts thereof.
The subheading for the highlighter is 9608.20.0000, HTSUSA, which provides for felt tipped and other porous-tipped pens and markers.
The subheading for the eraser and the tape dispenser is 3926.10.0000, HTSUSA, which provides for office or school supplies of plastic.
The subheading for the pencil is 9609.10.0000, HTSUSA, which provides for pencils (other than those of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors' chalks: pencils and crayons, with leads encased in a rigid sheath.
The subheading for the sticker sheet is 4911.91.4040, HTSUSA, which provides for other: pictures, designs and photographs: printed not over 20 years at time of importation: other: other: other.
The subheading for the "sticky notes memo pad" is 4820.10.2020, HTSUSA, which provides for memorandum pads, letter pads and similar articles.
The subheading for the notebook is 4820.10.2060, HTSUSA, which provides for diaries, notebooks and address books, bound...other.
In your reconsideration request, you again assert that the novelty coin purse and school supplies should be classified as toys in heading 9503, HTSUS. First, emphasizing their miniature sizes, you argue that the subject articles in item numbers 25261 and 25262 are clearly not intended to be used in non-play roles, e.g., the novelty coin purse made up to emulate a "miniature backpack" measures 2.76" x 2.28" D x 3.54" and holds an assortment of six items pulled from the following: ruler that measures 2.75" x 0.5", sharpener that measures 0.7" x .57" x .45"[1], highlighter that measures 1.18" x 1.18" x 1.77", eraser that measures 0.6" x 0.27" x .86", pens that measure .35" x 0.35" x 2.75", tape dispenser that measures 1.57" x .51" x 1", pencil that measures 0.35" x 0.35" x 2.75", sticker sheet that measures 1.18" x 1.18", and composition book that measures 2.16" x 2.55". Second, you describe how item numbers 25261 and 25262 will be marketed and sold as toys to children ages 6+ to coordinate with your client's "Real Littles" line, which includes a doll that can "wear" the novelty coin purse as a miniature backpack for children to play pretend school. You therefore assert that the items are designed for amusement, diversion, and play value rather than practicality. In support of your arguments, you cite two rulings, Port Decision ("PD") F85060, dated April 6, 2000 (holding a "Table Top Vanity Set" from China is classified as a toy in subheading 9503.70.0000, HTSUSA) and Headquarters Ruling Letter ("HQ") 958344, dated October 2, 1997 (holding a "Caboodles Glamour Gift Set" is classified as a toy in subheading 9503.70.8000, HTSUSA).
Heading 9503, HTSUS, is a "principal use" provision, and classification 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. Springs Creative Products Group v. United States, 2013 Ct. Int'l. Trade LEXIS 112, Slip Op. 2013-107 (CIT 2013) [hereinafter Springs Creative] (citing Additional U.S. Rule of Interpretation 1(a)). EN 95.03 makes clear that a collection "put up in a form clearly indicating their use as toys" should be classified under 9503, HTSUS.
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). In Springs Creative, the Court of International Trade ("CIT") stated that "an object is a toy only if it is designed and used for diversion, amusement, or play, rather than for practical purposes." The court held that the fabric panels designed for assembly by children into throw blankets, with or without the help of adults, comprised a toy because the resulting blanket had limited utility. The value of the merchandise came from its role as a source of play and amusement while assembling the blanket rather than from the use of the finished fleece throw blanket itself.
In Simon Mktg. v. United States, 29 CIT 1111, 1122, 395 F. Supp. 2d 1280, 1291 (2005) [hereinafter Simon Mktg.], the CIT held that to "classify every eye-catching, child-friendly article as a toy, simply because it enhances a child's imagination, is to unacceptably blur the HTSUS headings defeating their purpose and leading to absurd results." Further, in Ideal Toy Corp. v United States, 78 Cust. Ct. 28 (1977) [hereinafter Ideal Toy Corp.], 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 utilitarian purpose is incidental to the amusement." Therefore, not all merchandise that provides amusement is properly classified as a toy. The HTSUS explicitly acknowledges this reality by excluding certain products from being classified as toys irrespective of the design for children or the amount of amusement the merchandise provides to a child. See Note 1(d) to Chapter 95, HTSUS, and EN 95.03. Theses exclusions provide guidance that the intention was to exclude such merchandise from being considered toys, even if the merchandise might provide a small amount of amusement. See NY N052465, dated March 20, 2009, holding coin purse measuring 4.5" x 3.5" sold at a children's clothing store, cannot be classified as a toy in heading 9503, HTSUS, as Note 1(d) to Chapter 95, HTSUS, excludes articles eligible for classification in heading 4202, HTSUS, from classification in Chapter 95; NY K80862, dated December 19, 2003, holding that small novelty children's purses shaped like a Pegasus and unicorn are eo nominee named goods of heading 4202, providing the useful functions of storage, protection, organization, and portability for children's personal effects and property that outweigh any play value and therefore are classified in heading 4202, HTSUS; and HQ 963638, dated November 2, 1991, holding Rugrats novelty coin purses described as miniature representation of characters from the television show "Rugrats" with zippers varying in length from 1-3/4" to 3", securing a cavity large enough to hold coins, folded bills, keys, or other "treasures," are classified in heading 4202, HTSUS.[2]
EN 95.03 further clarifies that paints, modeling pastes, picture books, drawing books, colouring books, transfers, crayons, and pastels should not be classified in 9503, HTSUS, even if they are explicitly designed or intended for children's use. Thus, CBP does not consider drawing, writing, or coloring to have significant play value for classification purposes as a toy. See HQ H154039, dated May 27, 2011, holding that a "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, is not classified as a single toy in heading 9503, HTSUS, as it is a collection of disparate items that could be used for various crafts and therefore each item is classified separately; and HQ 962566, dated August 31, 1999, holding that 24 chenille stems, 22 pompons, 24 wiggly eyes, and 24 craft sticks, is not classified as a single toy as none of the items are independently classified as toys of heading 9503, HTSUS, and therefore are classified separately.
The instant novelty coin purse is made up to resemble a "miniature backpack" and is marketed to appeal to children as part of the "Real Littles" collection,[3] as required by Springs Creative, Simon Mtkg., and Ideal Toy Corp., supra. Notwithstanding, like the novelty coin purses in NY N052465 and HQ 963638, supra, any amusement provided by the novelty coin purse is outweighed by its utilitarian function of providing storage, protection, organization, and portability for children's personal effects, whether they be the miniature school supplies that are packaged and sold together in item numbers 25261 and 25262 or a variety of other small articles such as coins or trinkets. The instant novelty coin purse is prima facie classified in heading 4202, HTSUS. Therefore, it is not a toy and is precluded from classification in heading 9503, HTSUS. See Note 1(d) to Chapter 95, HTSUS, which excludes articles eligible for classification in heading 4202, HTSUS, from classification in Chapter 95.
You also contend that the miniature school supplies that are included in item numbers 25261 and 25262 and fit inside the novelty coin purse should be considered toys. However, upon examination, although these items are small, they are functional. As noted in footnote 2, supra, we found "Real Littles" school supplies similar to those contained in item numbers 25261 and 25262 on the importer's website. The marketing for the "Real Littles Plushie Backpacks" (item number 25438) states the following: "Unzip your Backpack to reveal 4 cute stationery surprises! These tiny toy school supplies have been made mini, but they all really work! Find a tiny notebook, little pencil, stickers and more!" See Moose Toys, https://www.moosetoys.com (last visited March 28, 2024).
We note that plastic erasers are commonly small, e.g., the type that slips onto the end of a pencil, so the fact that the eraser in item numbers 25261 and 25262 is small (.6" x .27" x .86") does not exclude it from classification as a normal, functional eraser. Likewise, in regard to the sticky notes memo pad (1-1/8" square), we note that similar items can also be small but are still functional. See NY N023575, dated March 7, 2008, holding a plastic case of sticky notes with calendar and pen classified in heading 4820, HTSUS, wherein the two sets of sticky notes measured 2-7/8" square and 1-7/8" x ". Furthermore, plastic stickers have historically been classified as printed articles of Chapter 49, HTSUS, and not toys, regardless of the colorful or fun theme of the stickers. See NY N293098, dated January 26, 2018, holding that stickers printed with various designs are classified in heading 4911, HTSUS; NY A87334, dated October 2, 1996, holding stickers made of plastic and printed with pictures are classified in heading 4911, HTSUS; and NY 856200, dated September 14, 1990, holding that stickers printed with pictures are classified in heading 4911, HTSUS. Finally, the instant pencil in item numbers 25261 and 25262 measures 0.35" x 0.35" x 2.75" and is functional. See NY N084495, dated December 17, 2009, holding that a 3" golf pencil is classified in heading 9609, HTSUS, even though it is shorter than a standard pencil. See also HQ 960801, dated November 21, 1997, holding that a "Jumbo Pencil" measuring 21" in length, 1" in diameter, and 3-1/4" in circumference, is not classified as a toy in heading 9503, HTSUS, even though it is impractical for writing and instead is classified as an article of wood in heading 4421, HTSUS.
In sum, regardless of their miniature sizes, the remaining school supplies at issue in item numbers 25261 and 25262 (e.g., the ruler, sharpener, highlighter, tape dispenser, and notebook) are functional just as the importer states on its website. Therefore, like the disparate craft items found in HQ H154039 and HQ 962566, supra, the instant school supplies are not toys and therefore our office sees no prohibition to classifying each of these items is classified in its respective tariff heading.
As noted above and detailed in NY N312428, although the components included in item numbers 25261 and 25262 are packaged and sold together, the items were not considered a set for tariff purposes as they did not meet the requirements of GRI 3(b). The National Commodity Specialists Division concluded that the contents of the "Miniature Backpack" are disparate school supplies that are not dedicated to a specific activity. Moreover, even if miniature, school supplies are not the types of articles normally carried in a coin purse. Therefore, each article was classified separately. We concur.
We also consider whether the products could be deemed as a set under the terms of Note 4 to Chapter 95 which states as follows:
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 GRI 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.
With respect to the application of Note 4 as it relates to the classification of products in heading 9503, HTSUS, EN 95.03 states, in pertinent part, the following:
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:
a) 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
b) 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 confectionery).
The first requirement to classify the instant combination of items together as toys pursuant to Note 4 to Chapter 95, HTSUS, is that at least one item would be classified in heading 9503, HTSUS, if presented separately. See HQ H069897, dated September 1, 2009. In this instance, CBP concludes that neither the novelty coin purse made up to resemble a miniature backpack nor any of the assorted miniature school supplies would be separately classified as a toy under heading 9503, HTSUS. Accordingly, Note 4 to Chapter 95, HTSUS, does not require that all of the component articles of the instant merchandise to be classified together as a toy. There is no need to determine whether remaining requirements of Note 4 to Chapter 95, HTSUS, are satisfied.
Finally, citing NY F85060 and HQ 958344, supra, you claim that item numbers 25261 and 25262 should be classified in heading 9503, HTSUS. CBP finds that the products at issue are distinguishable from the sets classified in both NY F85060 and HQ 958344 as the merchandise in those rulings did in fact meet the conditions of GRI 3(b) as they contained certain toy items that were classifiable in 9503, HTSUS.
For the foregoing reasons, we find the instant merchandise was correctly classified. Therefore, NY N312428 is hereby affirmed.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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[1] The sharpener was part of the original binding ruling; however, you state that it is no longer part of the assortment for the novelty coin purse as it has been replaced with a small folder made of reinforced paper measuring at 2.75" x 2.25". We note, too, that you have added pens to the assortment and have eliminated the sticky notes memo pad that was part of the original binding ruling.
[2] Cf. HQ 964737, dated January 4, 2001, holding "Hello Kitty" and "Pochacco" plush animal heads measuring approximately 2-1/2" x 2-1/2" x 1-1/2" with a small rear pocket and plastic clip for attaching to items such as a backpack, carry bag, or pant belt loop, is classified in heading 6307, HTSUS, as other made up textile articles and not as coin purses in heading 4202, HTSUS, because a small flat pocket is insufficient to function as a coin purse and furthermore, if merchandise is imported in identical form except without a pocket, is classified in heading 9503, HTSUS, as toys; and NY D82823, dated October 20, 1998, holding "Winnie the Pooh Pals" comprised of stuffed heads of well-known children's characters measuring 4" x 2" with a plastic loop clip-on attachment, are classified as toys in heading 9503, HTSUS, as they do not feature a pocket and therefore have no other practical use other than to amuse a child.)
[3] We were unable to find item numbers 25261 and 25262 on the importer's website. However, we did find many similar Real Littles backpacks, e.g., item number 25438 ("Real Littles Plushie Backpacks"), wherein the marketing states the following: "Real Littles Backpacks look like Plushies this season! These cute, colorful and soft Plushie Pet Backpacks are filled with real mini collectible surprises! Unzip your Backpack to reveal 4 cute stationery surprises .... [t]here are 6 Real Little Plushies Backpacks to collect: Bunny, Cat, Hamster, Llama, Panda, Unipup! Each Micro pack Backpack has a Clip so kids can hang them onto their bag or jeans!" Moose Toys, http://www.moosetoys.com (last visited Mar. 28, 2024).