CLA-2 RR:TC:MM 957958 LTO
Mr. Timothy F. Buntel
Hasbro, Inc.
1027 Newport Avenue
P.O. Box 1059
Pawtucket, Rhode Island 02862-1059
RE: Light Up Picture Maker; HQs 953922, 957894; heading 9503; "draw"; "drawing"; EN 90.17; EN to chapter 95; EN 95.03
Dear Mr. Buntel:
This is in response to your letter of April 12, 1995, to the Customs office in New York, requesting the classification of the "Light Up Picture Maker" under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded, along with a sample, to this office for response.
FACTS:
The "Light Up Picture Maker," which you state is a "battery operated art toy," consists of a plastic box with lighting module, six plastic design disks, a 4.5 inch pencil and several sheets of blank paper. In use, one of the plastic disks is placed in the center of the unit. Each disk has several images permanently printed into clear plastic windows. Light from the module housed inside the plastic box projects through one of these windows to create a shadow of the image on paper clipped to the top of the unit. The image can then be traced to create a picture.
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ISSUE:
Whether the "Light Up Picture Maker" is classifiable as a "toy set" under heading 9503, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Heading 9503, HTSUS, provides for "[o]ther toys." Subheading 9503.70, HTSUS, provides for "[o]ther toys, put up in sets or outfits, and parts and accessories thereof." Although the term "toy" is not defined in the tariff schedule, the EN to chapter 95, pg. 1585, suggests that a toy is an article designed for the amusement of children or adults. EN 95.03, pgs. 1588-1589, indicates 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.). For the reasons set forth in HQ 957894, dated December 14, 1995 (copy enclosed), which concerned the classification of the "Tattoo Graphix," a tattoo-making device, the "Light Up Picture Maker" cannot be classified as a "toy" or "toy set" under heading 9503, HTSUS.
Heading 9017, HTSUS, provides for drawing instruments. EN 90.17, pg. 1485, lists various apparatus or devices considered to be drawing instruments of heading 9017, HTSUS. There is no indication that an article's degree of sophistication is a relevant criteria for heading 9017, HTSUS, purposes (with the exception of "stencils," which EN 90.17 states must be "clearly identifiable as being specialized as drawing instruments"). In fact, EN 90.17 lists "drawing compasses" and "ordinary protractors," hardly sophisticated apparatus.
The term "drawing" is not defined in the text of the HTSUS or the Explanatory Notes. When terms are not so defined, they are construed in accordance with their - 3 -
common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
The term drawing means "the art or technique of representing an object or outlining a figure, plan, or sketch by means of lines," while the term draw means "to produce a likeness or representation of by making lines on a surface." Webster's Ninth New Collegiate Dictionary, pg. 381-382 (1990). The "Light Up Picture Maker" is designed, and includes all of the components necessary, to outline a figure and produce a likeness by means of making lines on a surface. The device is therefore classifiable, according to GRI 1, as a drawing instrument under heading 9017, HTSUS. Specifically, it is classifiable under subheading 9017.20.90, HTSUS, which provides for other drawing instruments. See HQ 953922, dated November 17, 1993 (copy also enclosed), wherein we classified the "Video Painter," a sketching and drawing system which allowed the user to create a wide variety of colorful images on a television set or video monitor, under heading 9017, HTSUS.
HOLDING:
The "Light Up Picture Maker" is classifiable under subheading 9017.20.90, HTSUS, which provides for other drawing instruments. The corresponding rate of duty for articles of this subheading is 5.3% ad valorem.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division
Enclosures