CLA-2-96:OT:RR:NC:N4:462
Ms. Carrie Vanderhoff Santoki, LLC. 1100 N. Opdyke Rd. Suite 200
Auburn Hills, MI 48326
RE: The tariff classification of LEGO minifigure toys and LEGO writing instruments from China
Dear Ms. Vanderhoff:
In your letter dated August 29, 2019, you requested a tariff classification ruling.
You submitted samples and photos of four items identified as LEGO minifigure toys and LEGO writing instruments and are further described as follows:
The first sample, identified as item number 52600, is “LEGO Pen Pals; Blue - includes LEGO Minifigure and LEGO Gel Pen.” Both items are packaged together in a cardboard window box.
The second sample, identified as item number 52601, is “LEGO Pen Pals; Black - includes LEGO Minifigure and LEGO Gel Pen.” Both items are packaged together in a cardboard window box.
The third sample, identified as item number 52602, is “LEGO Pen Pals; Red - includes LEGO Minifigure and LEGO Gel Pen.” Both items are packaged together in a cardboard window box.
The fourth sample, identified as item 52603, is “LEGO Pen Pals; Mechanical Pencil - includes LEGO Minifigure and LEGO Mechanical Pencil.” Both items are packaged together in a cardboard window box.
The samples will be returned, as requested.
You propose classification in subheading 9503, as toys. However, the items are not classifiable in Chapter 95 since CBP does not consider drawing, pasting, writing, coloring or painting to have significant play value for classification purposes as a toy. Moreover, CBP does not classify the tools for drawing, pasting, writing, coloring or painting as toys since those tools are not designed to amuse.
To proceed with classification, we must determine whether the products meet the definition of a “set” within the meaning of General Rule of Interpretation (GRI) 3(b). The Explanatory Notes (ENs) to the Harmonized Tariff Schedule of the United States (HTSUS) constitute the official interpretation of the tariff at the international level. EN X to GRI 3(b) provides: “for the purposes 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 together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).” Sets are classified according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character.
The kits under consideration do each consist of two different articles classifiable under separate headings. They are packaged together for retail sale. Therefore, they fulfill the requirements of (a) and (c) above. However, we find that they fail (b). Although the LEGO Minifigure toy may be joined to the embedded design of the writing instrument, there is no indication that any direct interaction is contemplated between these articles. That is, writing, drawing and coloring would seem to be an activity separate from playing with the toy. Therefore, the items will not be regarded for tariff purposes as “goods put up in sets for retail sale,” and will be classified separately.
The applicable subheading for the LEGO Minifigure toy will be 9503.00.0073, HTSUS, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys…dolls, other toys…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 rate of duty will be Free.
The applicable subheading for the gel inked ball point pens included in item numbers 52600, 52601, and 52602 will be 9608.10.0000, HTSUS, which provides for ball point pens. The rate of duty will be 0.8 cents each plus 5.4 percent ad valorem.
Although the pencil included in item number 52603 is referred to as a mechanical pencil on the retail package and in your letter, it is not considered mechanical for tariff purposes. This type of propelling pencil is commonly known as a clutch pencil because the lead is clutched by prongs. It is not a "twist" pencil, which usually contains a ball-screw mechanism that extends and retracts the lead when a portion of the pencil is twisted. Customs has long distinguished between pencils which have internal twist mechanisms for propelling the pencil lead and clutch pencils in which the pencil lead is held in place by prongs. Customs has consistently held that spring operated prongs which grasp the pencil lead are not considered to be mechanical devices for classification purposes, as the lead is advanced by a manual process. See Headquarters (HQ) Ruling 961069 dated April 16, 1998.
The applicable subheading for the pencil included in item number 52603 will be 9608.40.8000, HTSUS, which provides for “Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; part (including caps and clips) of the foregoing articles, other than those of heading 9609: Propelling or sliding pencils (for example, mechanical pencils): Other.” The rate of duty will be Free.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9608.10.0000 and 9608.40.8000, HTSUS, unless specifically excluded, are subject to an additional 15 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 9608.10.0000 and 9608.40.8000, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
Duty rates are 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 https://hts.usitc.gov/current.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, please contact National Import Specialist Sandra Sary at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division