CLA-2 RR:TC:FC 957894 GGD
M. Barry Levy, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004
RE: "Tattoo Graphix" Set
Dear Mr. Levy:
This letter is in response to your request of March 22, 1995, on behalf of your client, Toy Max, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an article identified as "Tattoo Graphix," imported from China. A sample was submitted with your inquiry. Subsequent to your request and submission, a conference was held with Headquarters personnel on May 17, 1995. An additional written submission, dated June 2, 1995, has been received and considered.
The sample article, identified by item no. 7007, contains the materials needed to "Make lots of cool & creepy tattoos!" The article is composed of a plastic carrying case/storage case/ drawing surface (described as a "creepy crawlers tattoo machine"), six sheets of tattoo designs, four non-toxic, colored markers, thirty sheets of blank tattoo paper, one plastic water applicator bottle, and a sheet of instructions, all of which are imported in a decorative cardboard box. The article is designed for use by children of ages five and up. A child chooses a tattoo design to place under the tattoo paper in the case's frame. The design is then traced and colored on the tattoo paper and cut out (scissors not included). After the child's skin is moistened, the tattoo is placed on the skin, pressed or rubbed, -2-
then peeled back to reveal the tattoo. A child may also create his/her own designs. The retail package, which is suitable for direct sale without repacking, measures approximately 14 inches in length by 10 inches in height by 2 inches in depth.
Whether the article containing multiple components allowing the user to learn an artistic technique and create a product is a toy set.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). The systematic detail of the harmonized system is such that virtually all 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 GRIs may then be applied. The Explanatory Notes (EN) 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, HTSUS, provides for "Other toys...and accessories thereof," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 indicate that a toy is an article designed for the amusement of children or adults. The EN to heading 9503 indicate that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets, and that collections of items separately classifiable in other headings are classified in chapter 95 when put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry sets, sewing sets, etc.).
The recently added "Subheading Explanatory Note to Subheading 9503.70" states in pertinent part that, for the purpose of the subheading, "[s]ets" 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." -3-
In Headquarters Ruling Letter (HRL) 950700, issued August 25, 1993, we discussed the circumstances in which certain items may be classified in subheading 9503.70, as toys put up in sets. We stated that the application of the toy set provision is relatively straightforward when each item within a set would individually be classified as a toy, as opposed to an assortment consisting entirely or partly of items which individually would be classified elsewhere in the HTSUS. In either case, we noted that subheading 9503.70, encompasses a combination of two or more mutually complementary, complete articles in a retail package, the essential character of which is established by the combination of the items (not by any individual item), and that the components should generally be used together to provide amusement.
In this case, we find that the separately classifiable components are not toys, nor are they put up in a form clearly indicating their use as toys. This is so even though the articles are put up in colorful retail packaging suggesting that amusing articles are to be found within and that "It's fun to make and wear 'real' tattoos!" It is, further, likely that the articles would be sold in toy stores alongside toys because of their appeal to children. These factors are not enough, however, to transform articles that are not toys into toys for tariff purposes.
In examining the articles, we find that the carrying case clearly predominates over the other components, all of which are directly related to tracing, drawing, cutting, and transferring the decal to the user's moistened skin. Although the individual articles are not excluded from heading 9503 (as would be coloring books and crayons), we find that the items are put up in a form to be principally used to trace, draw, cut and transfer and not primarily to amuse. "Tattoo Graphix" is therefore not classified in subheading 9503.70, HTSUS. The article cannot be classified by reference to GRI 1 because its individual components are classifiable in different headings, i.e., headings 4823, 4911, 9608, and either 3923 or 3926, HTSUS, which cover the blank paper, printed pictures, colored markers, and case, respectively.
In pertinent part, GRI 2(b) states that:
[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
GRI 3(a) states, in pertinent part, that: -4-
when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set
put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which states in pertinent part that:
[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
With respect, initially, to whether "Tattoo Graphix" comprises "goods put up in sets," we look to Explanatory Note X to GRI 3(b), which indicates that for purposes of the rule, the term "goods put up in sets for retail sale" means 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 up 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).
As previously noted, the subject goods meet criteria (a) and (c). With regard to criterion (b), we have found that the items are put up together to carry out the specific activity of tracing, drawing, cutting and transferring the decal. The article is a set.
In order to determine the essential character of the set, we next view Explanatory Note VIII to GRI 3(b), which provides the following guidance:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of -5-
the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
The case component predominates over the article's other components due not only to its greater bulk and value, but also to the fact that it stores, transports, and provides a working surface for tracing the tattoos and a holder for the drawing implements. The case imparts the set's essential character.
With respect to the competing provisions for the case's (and thus the set's) classification, we first look to heading 3923, HTSUS. Heading 3923 provides for articles for the conveyance or packing of goods, of plastics. The EN to heading 3923 indicate that:
[t]his heading covers all kinds of plastics commonly used for the packing or conveyance of all kinds of products. The articles covered include:
(a) Containers such as boxes, cases, crates, sacks and bags (including cones and refuse sacks), casks, cans, carboys, bottles and flasks.
The heading also covers cups without handles having the character of containers used for the packing or conveyance of certain foodstuffs, whether or not they have a secondary use as tableware or toilet articles.
(b) Spools, cops, bobbins and similar supports.
(c) Stoppers, lids, caps and other closures.
In Headquarters Ruling Letter (HRL) 954816, issued December 7, 1993, this office considered headings 3923 and 3926, and classified a waist bag in heading 3926, HTSUS, as if it were composed entirely of plastic materials. We cited to HRL 954072, issued September 2, 1993, for that ruling's observation that the exemplars cited in the EN to heading 3923 make it "clear that this heading provides for cases and containers of bulk goods and commercial goods and not personal items." It was determined that since the waist bag was clearly designed to carry personal effects, it was not described by heading 3923. We likewise find that the "Trace N' Color" case is not designed to carry, nor does it carry, bulk or commercial goods, and is not classifiable in heading 3923, HTSUS. -6-
In Headquarters Ruling Letter (HRL) 954816, issued December 7, 1993, this office considered headings 3923 and 3926, and classified a waist bag in heading 3926, HTSUS, as if it were composed entirely of plastic materials. We cited to HRL 954072, issued September 2, 1993, for that ruling's observation that the exemplars cited in the EN to heading 3923 make it "clear that this heading provides for cases and containers of bulk goods and commercial goods and not personal items." It was determined that since the waist bag was clearly designed to carry personal effects, it was not described by heading 3923. We likewise find that the "Tattoo Graphix" case is not designed to carry, nor does it carry, bulk or commercial goods, and is not classifiable in heading 3923, HTSUS.
Heading 3926, HTSUS, provides for "[o]ther articles of plastics and articles of other materials of headings 3901 to 3914." The EN to heading 3926 indicate that the heading covers
articles of plastics or other materials not elsewhere included or specified, including (among other items) "[o]ffice or school supplies." In light of the case's use as both a drawing surface and carrier of pencils, paper, and printed materials, we find that it is correctly classified in heading 3926. The proper subheading is 3926.10.0000, HTSUSA.
The article identified as "Tattoo Graphix" (item no. 7007), is properly classified in subheading 3926.10.0000, HTSUSA, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies." The applicable duty rate is 5.3 percent ad valorem.
John Durant, Director