CLA-2 RR:TC:FC 957829 RC
Mr. Timothy F. Buntel
Hasbro, Inc.
1027 Newport Avenue
P.O. Box 1059
Pawtucket, Rhode Island 02862-1059
RE: Classification of Fantastic Fingernails Nail Decorating Set
Dear Mr. Buntel:
This letter is in response to your inquiry of March 7, 1996,
on behalf of Hasbro, Inc., requesting a binding classification
ruling for a "Fantastic Fingernails Nail Decorating Set" under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
FACTS:
The "Fantastic Fingernails Nail Decorating Set," item number
9922, allows girls to paint, decorate, and wear artificial
fingernails. It consists of a plastic "decorating machine,"
approximately 12 inches by 12 inches by 4 inches, with a flip top
lid. The artificial fingernails are held to the decorating
machine's simulated fingers while the child paints and decorates
them with adhesive stickers. When the child is finished, she
closes the lid and pulls the slide lever. This releases the
decorated nails and dispenses a new set. Up to ten sets of nails
can be loaded into the machine through a panel in the bottom of
the unit. There is one nail designated for each finger without
regard to variant finger sizes from child to child. The finished
nails are applied to the child's fingers with a small adhesive
dot. These items are packaged together for sale at retail. The
suggested age for use is four years and over.
ISSUE:
What is the classification of a collection of items
consisting of "Fantastic Fingernails Nail Decorating Set" under
the HTSUSA?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported goods are classified
by application of GRI 1, that is, 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's may then be
applied. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
The primary question this ruling addresses is whether the
subject articles are classifiable in the various headings
providing for their components, including heading 3926 as other
articles of plastics, or are classifiable in their entirety
within heading 9503 as other toys. Although the provision for
toys put up in sets, 9503.70, is found at the six-digit
subheading level, Customs has utilized the toys put up in sets
concept to determine, from the outset, whether certain articles
normally classified elsewhere in the HTSUSA may fall within the
toy provision based on the manner they are put up.
Although the term "toy," in general, is not specifically
defined in the tariff, the EN's to Chapter 95, HTSUSA, 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), HTSUSA.
However, the merchandise in this case does not consist of
merely one article, but contains several distinct articles that
potentially may be classified as toys. The EN's to 9503 provide
that, "collections of articles, the individual items of which if
presented separately would be classified in other headings in 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)."
Customs, in general, classifies merchandise fitting this
description in 9503.70, as toys put up in sets or outfits and
still maintains that the criteria applicable to a GRI 3 set put
up for retail sale (e.g., at least two items classifiable in
different headings, items put up to meet a particular need or
carry out a specific activity, and items put up in a manner
suitable for sale without repacking) are not applicable to toys
put up in sets.
In this regard, we note that some of the exemplars of toy
sets found in the EN's (e.g., toy arms, tin soldiers) do not fit
the criteria for a GRI 3 set because they are not classifiable in
different headings. In addition, we find no indication that toys
put up in sets must meet a particular need or carry out a
specific activity. If 9503.70 were not considered distinct from
a GRI 3 analysis, all such merchandise would be classified,
pursuant to GRI 3(b) or 3(c), by its essential character which
would vitiate the need for the provision altogether.
The application of the toy set provision is relatively
straightforward when each article within the set individually is
classified as a toy. However, a greater challenge arises when
classifying merchandise consisting entirely or partly of articles
which individually are classified elsewhere in the HTSUSA.
Whereas the EN's to 9503 indicate that in the latter situation
articles are classified within 9503 when put up in a form
indicating their use as toys, it is our position that articles
which normally would be classified elsewhere in the HTSUSA may be
classified as toys when put up together so that they are designed
and used principally for amusement. In contrast to GRI 3 sets,
the articles need not meet a particular need or carry out a
specific activity.
It is this office's position that merchandise classified in
9503.70 should contain complementary articles generally used
together as a combination, and not individually, to provide
amusement (e.g., the components possess some nexus and work
together to amuse). However, not all the articles are required
to be used at the same time to be considered a toy put up in a
set.
In addition, no individual article should predominate over
any in the combination. When merchandise consists entirely or
partly of articles which individually are classified elsewhere in
the HTSUSA, the manner in which the articles are put up together
(e.g., packaged and sold as a combination of articles) should
convert the articles from their design and use as articles
classifiable elsewhere in the HTSUSA to toys. If no "conversion"
results from the manner in which the articles are put up together
(e.g., the articles are designed and used the same as when put up
individually), this may indicate that the articles should be
classified individually in their appropriate HTSUSA headings.
We find that this assortment is designed and used
principally for amusement. One can envision little girls playing
with the instant "machine" painting the fake nails and decorating
them with the decals, then applying them on their real
fingernails for show in a more temporary and playful manner than
would be the case merely with grown-up nail extensions. We note
that the latter would be worn regularly and for an extended
period of time. The former come only in one size per finger
unlike the adult versions that supply many different sizes to
accommodate all hand-size variations. We also note that, here,
the nail polish supplied is water-based. In sum, the articles
are of limited use and designed to provide amusement for girls,
to pretend they are adorning themselves like grown-up women.
The articles comprising these combinations are complementary
insofar as no individual article predominates over any in the
set. They are used as a combination and work together to amuse.
Although the articles individually may not possess much play
value, when put up together with other articles in this manner
they have been "converted" from articles for adornment or
grooming to playthings or toys.
In HRL 085020, issued October 30, 1989, merchandise packed
together for retail sale and consisting of a pink plastic bead
necklace, bracelet, ring, comb, and mirror was classified in
9503.70.80 as toys put up in sets.
Other similar decisions include HRL 088663, issued June 3,
1991, involving a "Wrestling Champion Medallion and Headband
Set," and HRL's 082974 and 082991, issued February 7, 1990 and
February 9, 1990, respectively, involving various jewelry, make
up and grooming kits. These rulings all held that the
merchandise was classifiable as toys put up in sets. Those
items, some of which included imitation cosmetic products,
provided amusement by promoting make believe play or imitation of
grown up activity when put up together. The individual articles
were no longer used for adornment and for grooming but, when put
up together, were used as toys.
The items in the "Fantastic Fingernails Nail Decorating
Set," although classifiable in different chapters other than
Chapter 95, are put up in a manner indicating their use as toys.
The "machine," nail polish, nails, decals, emery boards, etc. are
designed primarily for amusement as a play activity to make
grown-up style nails and allow for dress-up by wearing the nails.
Although the nails may be used as objects of personal adornment,
the combination of the "machine" and the water-based nail polish
suggests play. In other words, the use of the nail decorating
set as an object of personal adornment is secondary to the play
value of the items.
HOLDING:
The "Fantastic Fingernails Nail Decorating Set" is
classified under subheading 9503.80.70, HTSUSA, as other toys,
put up in sets. The applicable rate of duty is free.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division