OT:RR:CTF:CPM H287531 APP
Ms. Cheryl Barnes
Customs Senior Analyst
Dollar General Corporation
100 Mission Ridge
Goodlettsville, TN 37072
RE: Request for a ruling; Tariff classification of a 4-in-1 activity kit
Dear Ms. Barnes:
This is in response to your request for a binding ruling dated April 12, 2017, filed on behalf of Dollar General Corporation, also known as Dolgencorp., Inc. (“requestor”), concerning the classification of a 4-in-1 activity kit, style number 76445, under the Harmonized Tariff Schedule of the United States (“HTSUS”). Per your request, the provided sample will be returned to you.
FACTS:
Requestor describes the 4-in-1 activity kit as follows:
Style 76445 is . . . designed for children ages 6 and up. There are 4 different art type activities – Marker, crayon, and paint by number as well as sand art. The pictures are printed via a lithographic process.
The sample provided by requestor consists of a paperboard box containing four groups of items, each packaged in their own clear plastic bag, as follows:
Crayon by Number (8 crayons and 4 printed paperboard pages)
Marker by Number (6 mini markers and 4 printed paperboard pages)
Sand Art (6 bags of colored sand and 2 printed paperboard pages with adhesive)
Paint by Number (6 liquid paints, 4 printed paperboard pages, and a brush).
Below are pictures of the sample provided by requestor:
Requestor advises that the material weight and cost of each component are as follows:
Description: Material weight: Material costs:
8 wax crayons 40g 0.2819
14 outlined paperboard pages 36g 0.46
(2 with adhesive)
6 mini liquid markers 15g 0.2
6 bags of colored sand 50g 0.26
6 liquid paints 20g 0.3
1 brush 2g 0.05
ISSUES:
Whether the 4-in-1 activity kit is a set for tariff classification purposes.
What is the proper classification of the 4-in-1 activity kit?
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. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration in this case are as follows:
2505 Natural sands of all kinds, whether or not colored, other than metalbearing sands of chapter 26:
3213 Artists’, students’ or signboard painters’ colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or in similar forms or packings:
4911 Other printed matter, including printed pictures and photographs:
9603 Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees):
9608 Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609:
9609 Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks:
The merchandise consists of individual articles that are, prima facie, classifiable in different headings and packaged together for retail sale. Consequently, consideration is given to GRI 3, which provides, in relevant part, as follows:
3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, 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.
Mixtures, 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.
When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
EN (VIII) to GRI 3(b), states, “The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of 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.”
EN (X) to GRI 3(b) defines the term “set” in GRI 3(b) as follows:
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings …
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
Requestor asserts that the 4-in-1 activity kit is classifiable under heading 4911, HTSUS, specifically under subheading 4911.91.20, HTSUS, as a GRI 3(b) set in which the printed paperboard pages (2 of them with adhesive) impart the essential character of the kit.
Consistent with GRI 3(b) EN (X)(a), (b) and (c), the individual components of the instant 4-in-1 activity kit are: (1) prima facie classifiable in different headings; (2) intended to work together to meet the specific activity of creating color-by-number and sand artwork; and (3) put up in a manner suitable for sale directly to the user without repackaging. Therefore, the 4-in-1 activity kit meets the definition of a GRI 3(b) retail set for tariff classification purposes.
In Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1299-1300 (CIT 2012), the Court of International Trade (“CIT”) clarified that a GRI 3(b) set should be classified according to the item that provided the essential character. Essential character is determined based on a review of “the nature of the [good], its bulk, quantity, weight or value, or by the role of a constituent [good] in relation to the use of the goods.” Id. at 1300. This list is not exhaustive. The essential character of an article is “’that which is indispensable to the structure, core or condition of the article, i.e., what it is.’ Further, ‘the existence of other materials which impart something to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article.’” Structural Indus. v. United States, 29 CIT 180, 185, 360 F. Supp. 2d 1330, 1336 (2005) (citations omitted).
While the purpose of the 4-in-1 activity kit is to allow children aged 6 and up to create four separate types of art, there is nothing stopping a creative child from opening all the packages and coloring the paperboard pages as she/he pleases with any of the supplied coloring tools. As such, the 14 outlined paperboard pages (2 with adhesive) printed via a lithographic process comprise the greatest value of any of the articles in the set as well as the greatest volume of the kit. The amount of sand and liquid paint and the size of the mini markers appear to be just enough to complete the coloring projects, leaving only the paperboard pages as the end result. Hence, the paperboard pages are the “most outstanding and distinctive characteristic” of the set. As a result, the 14 paperboard pages impart its essential character under GRI 3(b). See HQ 962355, dated January 5, 2000 (classifying four types of coloring kits as GRI 3(b) sets by the article comprising the colored or decoration craft, and not the act of drawing); HQ 965195, dated August 15, 2002 (classifying coloring sets consisting of a background scene printed onto a sheet of paper, 2 sheets of pressure sensitive paper stickers, and 6 felt-tipped markers as GRI 3(b) sets according to the article that provided the finished product); New York Ruling Letter (“NY”) M80485, dated February 24, 2006 (classifying a “Spiderman Activity Book” consisting of a blister pack containing a small plastic stencil and 6 small markers, and a second blister pack containing a note-pad and lithographs, as lithographs of subheading 4911.91.20, HTSUS, pursuant to GRI 3(b)).
Since the instant set has an essential character under GRI 3(b), it is unnecessary to apply GRI 3(c). Accordingly, we find that the 4-in-1 activity set is classifiable in subheading 4911.91.20, HTSUS, as “Other printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Lithographs on paper or paperboard: Not over 0.51 mm in thickness.”
HOLDING:
By application of GRIs 1 and 6, and 3(b), the instant 4-in-1 activity kit is classified under heading 4911, HTSUS, specifically under subheading 4911.91.20, HTSUS, as “Other printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Lithographs on paper or paperboard: Not over 0.51 mm in thickness.” The 2017 column one, general rate of duty is Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division