CLA-2 CO:R:C:G 084895 HP

Mr. A. Sochaczevski
AMAV Industries Ltd.
2345 Lapierre St.
Lasalle, Quebec
CANADA HBN 1B7

RE: Plaster molding and painting kit

Dear Mr. Sochaczevski:

This is in reply to your letter of June 16, 1989, concerning the tariff classification of a Cast and Color kit, your product number 4531, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of a kit used by children to produce plaster novelties. It includes a clear plastic mold with 12 distinctively shaped cavities, plaster to be mixed with water, kneaded, and then poured into the mold cavities. a set of mixed paints and an artist brush for coloring the novelties after the plaster dries, and various small items for decorating some of the painted plaster novelties.

The box containing the aforementioned components displays a picture with the finished products, and recommends ages "8 years and up." From this, we assume that the instant merchandise is principally designed for children. The container also states that the paintbrush, magnetic strip, paints, and plastic tube are from the U.S.A., the metal pieces are from Hong Kong, with the "balance of [the] components [of] Canadian origin." The latter includes the plastic mold, plaster, and thermometer.

ISSUE:

Whether the instant merchandise is a toy under HTSUSA? LAW AND ANALYSIS:

Subheading 9503.70, HTSUSA, provides for toys, put up in sets or outfits, and parts and accessories thereof.

The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. EN (A) to this heading states that:

Collections of articles, the individual items of which if presented separately would be classified in other headings of 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).

EN 9503 goes on to state, in pertinent part:

This heading also 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.

* * *

(h) Crayons and pastels for children's use, of heading 96.09.

It is clear from the above text that, imported separately, several components of the "Cast & Color" are classifiable elsewhere in the HTSUSA. Therefore, we must determine whether the "Cast & Color" set is put up in a form clearly indicating its use as a toy.

Although the exclusionary language of EN 9503, supra, might lend one to believe that art sets or kits are not within the scope of Chapter 95, HTSUSA, the exclusions are merely statements that these individual articles are more specifically provided for elsewhere in the Nomenclature. The instant merchandise does not use a "modelling paste," and the role of the paints and the painting activity is similar to that in model airplane, boat, etc., kits. When combined in a "Cast & Color" set, this set is a toy in the same manner as "instructional" chemistry and sewing kits are classified as toys.

It has been argued that since the function of the "Cast & Color" is to create decorative/functional items, classification as a toy is precluded . However, certain articles are classifiable as toys, e.g., electric irons, sewing machines, musical instru ments, etc., even though they may be capable of a function distinct from the amusement of children and adults. With respect to the instant merchandise, the finished products displayed on the box are clearly meant to be made by children for their use; bears, kitties, unicorns, all with smiling faces, and other similar items. Any other use, i.e., as a picture frame, is clearly secondary to the principal use of the 12 projects included therein: the amusement of children. HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 9503.70.8000, HTSUSA, as other toys; reduced-size ("scale") models and similar recrea tional models, working or not; puzzles of all kinds; and accessories thereof, other toys, put up in sets or outfits, and parts and accessories thereof, other, other.

Articles which meet the definition of "goods originating in the territory of Canada" are subject to reduced rates of duty under the United States- Canada Free Trade Agreement Implementation Act of 1988 ("FTA"). General Note 3(c)( vii), HTSUSA. Goods are considered "originating in the territory of Canada" if:

* * *

(2) they have been transformed in the territory of Canada and/or the United States, so as to be subject--

(I) to a change in the tariff classification in Canada as described in the rules of subdivision (c)(vii)(R) ....

Id. at 3(c)(vii)(B).

Subdivision (c)(vii)(R), supra, provides, in pertinent part, that for Section XX, HTSUSA (Chapters 94 through 96), "[a] change from one chapter to another ..." is a sufficient transformation under the FTA for the instant merchandise to be considered as originating in Canada. As we stated above, when imported separately, whether into Canada or the United States, several components of the "Cast & Color" are classifiable in different chapters within the HTSUSA. It would therefore appear that the instant merchandise is considered a product of Canada for classification purposes.

General Note 3(c)(vii)(C), HTSUSA, is inapplicable here, since the components of the "Cast & Color" set are not merely packaged in Canada. Rather , several of the key components are made in Canada. See HRL 084935 of August 23, 1989 . Consequently, if all other applicable conditions under the FTA are met, the "Cast & Color" set is eligible for a reduced duty rate of 6.1 percent ad valorem; otherwise, the General rate of duty is 6.8 percent ad valorem.


Sincerely,


John Durant, Director
Commercial Rulings Division