HQ H258767
August 25 2015
CLA-2OT:RR:CTF:TCM: H258767ERB
Ms. Gail T. Cumins
Sharretts, Paley, Carter & Blauvelt, P.C.
75 Broad Street
New York, NY 10004
RE: Modification of NY N255938; Tariff classification of four (4) “Mess-Free Glitter” craft kits for children
Dear Ms. Cumins:
U.S. Customs and Border Protection (CBP) issued you, on behalf of your client, Melissa & Doug LLC (M&D), New York Ruling Letter (NY) N255938, dated September 3, 2014. NY N255938 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States, (HTSUS) of eight samples of “Mess-Free Glitter” craft kits. We have since reviewed NY N255938, and considered your comments in your request for reconsideration dated October 2, 2014, as well as your letter of May 11, 2015, and the follow-up telephonic conference held on May 13, 2015, with this office. We find NY N255938 to be in error with respect to the classification of four of the “Mess-Free Glitter” kits, which is described in detail herein.
Pursuant to 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), a notice was published in the Customs Bulletin, Volume 49, Number 26, on July 1, 2015, proposing to modify NY N255938, and any treatment accorded to substantially identical transactions. One comment in support of the proposed notice was received.
FACTS:
NY N255938 classified four of the eight kits as toys of heading 9503, HTSUS. Regarding the other four kits, NY N255938 stated the following, in relevant part:
The following four kits will not be classified as toys:
The “Mess-Free Glitter Foam Frames” kit, item #9507, consists of two assembled foam frames, two foam sticker sheets, and five mess-free glitter sheets in different colors.
The “Mess-Free Glitter Princess & Fairy Scenes,” item #9509, consists of a picture printed with a scene of a princess and another of a fairy along with five mess-free glitter sheets in different colors.
The “Mess-Free Glitter Treasure Box & Mirror,” item #9517, kit includes a paperboard treasure box, mirror, 56 stickers and five mess-free glitter sheets in different colors.
The “Mess –Free Glitter Friendship Foam stickers” kit, item #9500, consists of two foam sticker sheets made up of stickers in various shapes and five mess-free glitter sheets in different colors
***
The applicable subheading for the paperboard trinket box from the “Mess-Free Glitter Treasure Box & Mirror” will be 4819.50.4040, HTSUS, Cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding or webs of cellulose fibers; box files, letter trays and similar articles, of paper or paperboard of a kind used in offices, shops or the like: Other packing containers, including record sleeves: Other: Other: Rigid boxes and cartons. The rate of duty will be Free.
The applicable subheading for the foam stickers from the “Mess-Free Glitter Treasure Box & Mirror” will be 3919.90.5060, HTSUS, which provides for self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: other: other: other. The rate of duty will be 5.8 percent ad valorem.
The applicable subheading for the mirror from the “Mess-Free Glitter Treasure Box & Mirror” will be 3924.90.5650, HTSUS, which provides for …other household articles…of plastics: other: other…other. The rate of duty will be 3.4 percent ad valorem.
The applicable subheading for the mess-free glitter sheets from the “Mess-Free Glitter Treasure Box & Mirror” will be 3926.90.9980, HTSUS, which provides for other articles of plastic…: other: other…other. The rate of duty will be 5.3 percent ad valorem.
The “Mess-Free Glitter Friendship Foam Stickers” kit will be considered a set, with the essential character imparted by the foam stickers. The applicable subheading for the “Mess-Free Glitter Friendship Foam Stickers” kit will be 3919.90.5060, HTSUS, which provides for self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: other: other: other. The rate of duty will be 5.8 percent ad valorem.
The “Mess-Free Glitter Princess & Fairy Scenes” will be considered a set, with the essential character imparted by the printed scenes. The applicable subheading for the “Mess-Free Glitter Princess & Fairy Scenes” will be 4911.99.8000, HTSUS, which provides for Other printed matter, including printed pictures and photographs: Other: Other: Other: Other. The rate of duty will be Free.
The “Mess-Free Glitter Foam Frames” kit will be considered a set, with the essential character imparted by the foam frames. The applicable subheading for the “Mess-Free Glitter Foam Frames” kit will be 3924.90.2000, HTSUS, which provides for…other household articles…of plastics: other: picture frames. The rate of duty will be 3.4 percent ad valorem.
In your reconsideration request, you argue that all eight kits, but specifically the four at issue here are properly classified as “toys” under heading 9503, HTSUS. You state that M&D primarily markets its products to children’s stores, toy stores and through its own website. M&D introduced its “Mess-Free Glitter” product line at the 2014 Toy Fair, one of the largest toy industry conferences, produced by the Toy Industry Association, Inc. The brightly colored packaging states that the product is intended for users ages 5 and up.
ISSUE:
Whether the subject “Mess-Free Glitter” kits are classified as toys, of heading 9503, HTSUS, or whether they are classified according to their individual constituents, because they are neither toys nor “sets.”
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
3919 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:
***
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
***
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
***
4819 Cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding or webs or cellulose fibers; box files, letter trays and similar articles, of paper or paperboard of a kind used in offices, shops or the like:
***
4911 Other printed matter, including printed pictures and photographs:
***
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
Note 2(y) to Chapter 39 states:
This chapter does not cover:
(y) Articles of chapter 95 (for example, toys, games, sports equipment)
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:
In the absence of special language or context which otherwise requires:
A tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States, at, or immediately prior to the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg 35127, 35128 (August 23, 1989).
The EN 95.03 (D), HTSUS, provides for “Other toys” and states, in pertinent part, the following:
This group covers toys intended essentially for the amusement of persons (children or adults).
***
These include:
***
(iii) Constructional toys (construction sets, building blocks, etc.)
***
(xviii) Educational toys (e.g. toy chemistry, printing, sewing and knitting sets).
***
Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this heading when they are put up in a form clearly indicating their use as toys (e.g. instructional toys such as chemistry, sewing, etc., sets).
The tariff term “toy” is not statutorily defined. The courts and CBP construe statutorily undefined terms in accordance with their common and commercial meaning, which is presumed to be the same. See E.M. Chems. v. United States, 920 F.3d 910, 913 (Fed. Cir. 1990). However, the courts, through a series of decisions, have crafted a framework for “toys” of heading 9503, HTSUS, which guides CBP in the instant case.
In Springs Creative Products Group v. United States, 35 I.T.R.D. (BNA) 1955, Slip Op. 13-107 (Ct. Int’l Trade Aug. 16, 2013), the Court opined on the tariff classification of a child’s craft kit for making a fleece blanket. In its analysis, the CIT consulted dictionaries, and other reliable sources regarding the meaning of the word “toy.” See Medline Indus. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995)(“tariff terms are construed in accordance with their common and popular meaning, and in construing such terms the court may rely upon its own understanding, dictionaries and other reliable sources.”)(citations omitted). First, the Court consulted Webster’s Third New International Dictionary of the English Language Unabridged (1981), at 2419, provides, in relevant part that “toys” are:
3a: something designed for amusement or diversion rather than practical use b: an article for the playtime use of a child either representational (as persons, creatures, or implements) and intended esp. to stimulate imagination, mimetic activity, or manipulative skill or nonrepresentational (as balls, tops, jump ropes) and muscular dexterity and group integration..
Next, the Court cited Merriam Webster’s Collegiate Dictionary (1998) at page 41, which defines “amusement” in relevant part as, “3: a pleasurable diversion.” Thus, taken together “[t]his common meaning of toy – an object primarily designed and used for pleasurable diversion – is consistent with its judicial interpretation.” Springs Creative Products Group v. United States, supra at page 15, citing Processed Plastic Co. v. United States, 473 F.3d 1164, 1170 (Fed. Cir. 2006) (noting that the principal use of a “toy” is amusement, diversion, or play value rather than practicality); Minnetonka Brands, Inc. v. United States, 24 CIT 645, 651 ¶ 37, 110 F. Supp. 2d 1020, 1026 (2000) (noting that for purposes of Chapter 95, HTSUS, “an object is a toy only if it is designed and used for amusement, diversion, or play, rather than practicality.”).
Heading 9503, HTSUS, is in relevant part, a “principal use” provision, and classification is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of importation, and the controlling use is the principal use. Springs Creative Products Group v. United States, supra at page 16, citing Additional U.S. Rule of Interpretation 1(a). In United States v. Carborundum Co., 536 F.2d 373, 377 (1976), the U.S. Court of Customs and Patent Appeals stated that in order to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factor, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchaser; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. While these factors were developed under the Tariff Schedule of the United States (TSUS) (predecessor to the HTSUS), the courts, and this office have and continue to apply them to the HTSUS. See, e.g., Minnetonka Brands v. United States, supra; Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), and see Essex Mfg., Inc. v. United States, 30 C.I.T. 1 (2006).
Finally, the CIT also consulted the ENs, which inform and shape our understanding of the scope of the heading, though the ENs should not restrict or expand the scope of headings. Rather, they should describe and elaborate on the nature of goods falling within those headings, as well as the nature of goods falling outside of those headings. The EN 95.03 clarifies that “[c]ollections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this heading when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).” Craft kits generally are considered “educational toys” or “instructional toys” classified under Chapter 95, HTSUS, because they are principally used for the amusement of children, and that amusement is derived through the creation and design of the final product. See Headquarters Ruling (HQ) 959401, dated April 14, 1997 (classifying “Just Bead It! Fusion Beads Activity Sets” kit as a toy) See also EN 95.03 (iii) and (xviii). However, they are distinguishable from drawing or coloring kits, because the tools for writing, coloring, drawing or painting are not designed to amuse, and do not provide significant enough manipulative play value. See HQ H035564, dated November 4, 2008 (“CBP has never considered writing, coloring, drawing or painting to have significant “manipulative play value,” for purposes of classification as a toy. Nor does CBP classify the tools for writing, coloring, drawing or painting as toys since these tools are not designed to amuse.”); HQ 966198, dated July 21, 2003 (“The amusement derived from art-related activities is secondary to utility because those articles and sets used for drawing, coloring and other art-related activities are not ‘essentially playthings’.”); see also NY N155175, dated April 8, 2011 (classifying six crafts kits, four of which CBP determined the kit’s amusement value was greater than the utilitarian value of the finished article, and further, the completed items will be flimsily constructed and, in all likelihood, will not be used over a long period of time. The remaining two kits, however, were not classified as toys because, “CBP does not consider drawing, writing, coloring or painting to have significant play value for classification purposes as a toy.”).
Ultimately, the Springs Creative court held that the blanket kit was imported as a kit, intended to be assembled by children or adults, and the basis for the classification was not the finished product but rather the kit as a whole, stressing the role creation, amusement, and assembly played in the making of the blanket. It was marketed with images which depict children having fun while assembling the blanket. The kits promote the development and education of children by helping a child develop skills such as manual dexterity, cutting, tying, and counting. It therefore is principally designed for amusement, diversion, or play and is classified as “toys” under heading 9503, HTSUS. Springs Creative Products Group v. United States, supra at page 24.
Here, the “Mess-Free Glitter Friendship Foam stickers” kit, the “Mess-Free Glitter Foam Frames” kit, the “Mess-Free Glitter Princess & Fairy Scenes” kit, and the “Mess-Free Glitter Treasure Box & Mirror” kit are substantially similar to the fleece blanket kit. The instant foam and glitter kits consist of pre-cut foam shapes which do not have any designs or color on them until the child “creates” them by choosing which color from the glitter sheets to apply. Choosing and creating the glitter and foam stickers manifestly expresses a child’s creativity and individuality. Each foam and glitter sticker becomes a unique creation of the child’s imagination, which can then be used elsewhere for play or decoration, or, in the case of the Treasure Box & Mirror kit, or the Foam Frames kit, adornment of these objects. The treasure box, mirror, and frames included in the kits can be described as flimsy or insubstantial. This is because the value is derived from the creative manipulative play and not the resulting decorated object. The goal is for children to have fun making stickers and express imagination though a unique final project.
The glitter and foam kits are clearly marketed towards children to inspire imaginative thinking through play. They are sold primarily in toy stores, or in other normal commercial channels for toys. They are understood by children to be used as toys. The decorated objects have little to no economically practical use beyond that of a play-thing. Lastly, the kits were featured at the Toy Industry of America’s annual Toy Fair conference, which indicates that the trade recognizes their use as toys. The product is thus classified as a “toy” under heading 9503, HTSUS, for tariff purposes.
This is consistent with previous classifications of a similar products whereby children create or produce a final product, but the utilitarian value of the final product is outweighed by the amusement, diversion, or play experienced in making that product. See NY L82030, dated February 3, 2005 (classifying a “Colors & Shapes Foam Activity Kit” in heading 9503, HTSUS); NY F80917, dated January 5, 2000 (classifying five kits: “Make Your Own Bubble Gum,” “Make Your Own Chocolate,” “Make Your Own Bath Fizzer Kit,” “Melt & Pour Soap Kit,” and “Tie Dye Kit,” as “instructional kits designed primarily to provide amusement in the form of mixing, pouring, and basically “creating” a finished product,” in heading 9503, HTSUS); NY N198045, dated January 20, 2012 (classifying a “Foam Frame Kit” consisting of a foam picture frame, foam stickers, dowel stand, glitter pen and a package of rhinestones used to decorate the frames in heading 9503, HTSUS); N189022, dated November 4, 2011 (classifying a “Foam Heart Frame” kit and “Frame Felt Craft” kit, which included overlays and decorating access with the frames under heading 9503, HTSUS).
Lastly, as the instant craft kits are described as “toys” of heading 9503, HTSUS, then the relevant kits are excluded from classification in chapter 39, by operation of Note 1(y) to that chapter.
HOLDING
By application of GRI 1, the subject “Mess-Free Glitter Foam Frames” kit, item #9507, the “Mess-Free Glitter Princess & Fairy Scenes,” item #9509, the “Mess-Free Glitter Treasure Box & Mirror,” item #9517 and the “Mess-Free Glitter Friendship Foam Stickers” kit, item #9500, are classified in subheading 9503.00.0073, HTSUSA (Annotated), which provides for, “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: “Children’s products” as defined in 15 U.S.C. § 2052: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” The column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov
EFFECT ON OTHER RULINGS
NY N255938, dated September 3, 2014, is hereby MODIFIED, as regards “Mess-Free Glitter Foam Frames” kit, item #9507, the “Mess-Free Glitter Princess & Fairy Scenes,” item #9509, the “Mess-Free Glitter Treasure Box & Mirror,” item #9517 and the “Mess-Free Glitter Friendship Foam Stickers” kit, item #9500. The remainder of the ruling is AFFIRMED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division