Mega Fun Carry All

HQ 962075 July 26, 1999 CLA-2 RR:CR:GC 962075 JGB CATEGORY: Classification TARIFF NO.: 3213.10.0000; 3407.00.2000; 3924.90.5500; 9503.90.0045; 9609.10.0000; 9609.90.8000 Ms. Kimberly Fathauer A. W. Fenton Company, Inc. P.O. Box 360614 Columbus, OH 43236-0614 RE: Mega Fun Carry All Dear Ms. Fathauer: This is in response to your letter of July 1, 1998, to the Customs National Commodity Specialist Division, New York, which requests reconsideration of New York Ruling Letter (NY) C88001 issued June 2, 1993, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a 252 piece Mega Fun Carry All. The article, designated item #39420, is manufactured in Malaysia. Your letter was referred to this office for reply. We regret the delay in providing this response. FACTS: The Mega Fun Carry All is packaged in a bright red, yellow, blue, green and black box marked “Kid’s Club” and “Non-Toxic.” It contains a collection of art, clay, and drawing supplies designed for children. It consists of 100 crayons, 20 colored pencils, 6 regular lead pencils (labeled “metallic pencils”), 24 pieces of colored chalk, 24 pieces of white chalk, 1 dough factory plastic extruder with plastic dies providing 10 shape alternatives, 3 plastic shooting molds with plungers, 6 plastic cutting shapes, 6 plastic animal molds, 2 plastic knives, 12 containers of fun dough, 20 sticks of modeling clay, 6 jars of poster paints, and a plastic tray holding 16 watercolor paints and a paintbrush. All items are packed in small individual cartons inside a larger retail box.  The article is claimed to be marketed in a way to appeal to children and is sold only to stores to place in their toy aisles. You cite Headquarters Rulings Letters (HQ) 957131, issued February 27, 1995; HQ 086407, issued March 22, 1990; HQ 959232, issued June 2, 1998; and HQ 087441, issued January 8, 1991, in support of the claim of reclassification as a toy set under subheading 9503.70, HTSUS. The New York ruling classified all the components individually. ISSUE: Whether the components of the Mega Fun Carry All are classified separately in various HTSUS headings or in heading 9503, HTSUS, as toys. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. Heading 9503 covers other toys. Although the term "toy," in general, is not specifically defined in the tariff, the EN's to Chapter 95, HTSUS, indicate that, "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUS. If this article can be shown to be designed principally for the amusement of children or adults, it would qualify as an article of Chapter 95. Upon examination of the individual articles contained in the collection, only the “dough factory” with its extruder shape alternatives functions to amuse. The child would choose the die shape desired and insert the die at the appropriate place, add the dough and operate the lever to extrude the finished article. This activity would be repeated again and again using different colored dough and different shapes to bring about the transformation of an amorphous blob of dough into something with an interesting form. Customs would regard this activity as manipulative play with a toy that was designed to amuse. In the tariff context, “amuse” is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. An examination of the balance of the goods individually packed in the large Carry All box shows that none of the other categories of merchandise is designed to amuse, but rather is designed to facilitate some kind of art or drawing activity. For example, while one may find drawing with chalk to be amusing in a colloquial sense, the chalk was not designed to amuse. The chalk was designed to put words on a blackboard or color a picture. That is its function, not amusement. The same type of analysis applies to the rest of the art supplies. In the most recent ruling cited in support of the claim of classification in subheading 9503.70, HTSUS, the highlighted portion speaks to the point that some components may be used independently of the rest in a 9503.70 set without disqualifying the classification. However, integral to that concept is that the articles ”typically” are used together to provide amusement but also that “[i]t is sufficient that the components of the toy set possess a clear nexus which contemplates a use together to amuse.” HQ 959232, issued June 2, 1998 (emphasis supplied). Of the articles under consideration here, however, only the dough machine provides amusement and is a toy and the rest function as art supplies and are in no way connected. There is no nexus, clear or otherwise, between the poster paints and the chalk or between the water colors and the paint or the colored pencils. The goods are not associated with one another except that someone chose to package them and offer them for sale in the same box. The ENs to subheading 9503 indicate that “for the purpose of this subheading: ...‘Sets’ 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.” The product under consideration here is a collection of art materials coupled with a toy “dough factory.” There is nothing in how the goods are put up together to make the goods more than the sum of their parts. Consequently, they do not constitute toys put up in sets. The goods, whether they are the crayons, paint, or pencils, will be used exactly the same way when imported together as they would when they were imported alone. In other words, there is nothing that creates a set out of the disparate objects. With the exception of one article within the collection, they are not designed principally for amusement. Several of the articles, namely, the crayons or pastels and modeling pastes (better known in this country as modeling clay or fun dough) are excluded from consideration in chapter 95 by exclusions (b) and (h) in the relevant ENs. In consequence of the above-described goods not being put up in a form clearly indicating their use as toys, they must be separately classified, as follows: The applicable subheading for the crayons and the chalk will be 9609.90.8000, HTSUS, which provides for “Pencils..., crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks: Other: Other.” The applicable subheading for the colored and lead pencils will be 9609.10.0000, HTSUS, which provides for “Pencils..., crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks: Pencils and crayons, with leads encased in a rigid sheath.” The applicable subheading for the dough factory extruder with plastic dies is 9503.90.0045, HTSUS, which provides for “Other toys;...parts and accessories thereof: Other, Other toys and models.” The applicable subheading for the plastic shooting molds with plungers, plastic cutting shapes, plastic animal molds, and plastic knives will be 3924.90.5500, HTSUS, which provides for “Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other.” The applicable subheading for the fun dough and other modeling clay will be 3407.00.2000, HTSUS, which provides for “Modeling pastes, including those put up for children’s amusement;...: Modeling pastes, including those put up for children’s amusement.” The applicable subheading for the poster paints and water color paints with paintbrush will be 3213.10.0000, HTSUS, which provides for “Artists’, students’ or signboard painters’ colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or in similar forms or packings: Colors in sets.”  HOLDING: NY C88001 is AFFIRMED, in substance. At your request and based upon the information you provided, two clerical errors in NY C88001 are hereby corrected: (1) there are 24 pieces of white chalk, not 20 as originally stated; (2) there are 16 watercolor paints, not 20 as originally stated. The articles originally thought to be plastic ruler shapes are actually dies, treated as part of the “dough factory” article and classified therewith. As these changes are clerical in nature, they are not governed by section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), 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) pertaining to the modification and revocation of interpretative rulings. Sincerely, John Durant, Director Commercial Rulings Division