CLA-2 CO:R:C:F 957131 GGD
Assistant District Director of Customs
Commercial Operations Division
198 West Service Road
Champlain, New York 12919
RE: Internal Advice Request No. 49/94; "Creative Art," "Paint
Art," "Spiral Art," and "Sponge Art" Sets
Dear Sir:
This letter is in response to Internal Advice Request No.
49/94, initiated by a letter dated July 6, 1994, submitted by
Trans-Border Customs Services, Inc., One Trans-Border Drive, P.O.
Box 800, Champlain, New York 12919, on behalf of Henry Gordy
International, Inc. The request concerns the classification
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), of four separate articles imported from
Canada and identified above. A sample of each article has been
submitted.
FACTS:
All of the articles are retail packaged in Canada, and are
imported suitable for direct sale without repacking. Most of the
components comprising the articles are the products of Hong Kong,
Thailand, and/or Malaysia. The origins of components not
manufactured in Canada are identified in parentheses below.
The "Creative Art" article, identified by item no. 05020,
consists of one vinyl apron (Hong Kong), eight crayons
(Thailand), eight watercolor paints (Hong Kong), eight pictures
to color, and one artist brush (Hong Kong). -2-
The "Paint Art" article, identified by item no. 05030,
consists of two framed pictures and easels, eight acrylic paints
(Hong Kong), and one artist brush (Hong Kong).
The "Spiral Art" article, identified by item no. 05125,
consists of three kaleidoscope stencils and their holder, six
felt tipped, watercolor markers (Thailand), twenty five sheets of
drawing paper, and one pencil (Hong Kong).
The "Sponge Art" article, identified by item no. 05130,
consists of six specially shaped sponges (Malaysia), six jumbo
glitter watercolor paints (Hong Kong), six sheets of coated
paper, and one artist brush (Hong Kong).
ISSUE:
In what tariff provisions are the sets properly classified?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). 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 (ENs) 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 GRIs.
The four articles each consist of an array of components
that are classifiable individually in various headings. We note,
however, that the "paint art" and "sponge art" articles
essentially consist only of paints and accessories related to the
paint's application. In determining whether any one heading
would accommodate the components of these two sets, we look to
heading 3213, HTSUS.
Heading 3213, HTSUS, provides for "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." The ENs to heading 3213 indicate that, among
other items, the heading includes colors and paints (including
watercolors) that are sold in sets or outfits, with or without -3-
brushes, palettes, palette knives, stumps, pans, etc. It is
apparent that the non-paint components of the "paint art" and
"sponge art" articles are put up with the paints and colors to
enhance the sets' attractiveness to children. As heading 3213 is
sufficiently broad to cover these components, it specifically
describes the "paint art" and "sponge art" sets. The proper
subheading for these colors in sets is 3213.10.0000, HTSUSA.
In considering the "spiral art" and "creative art" sets, we
note that the items are comprised of several components other
than mere paints and related accessories. The components of the
"spiral art" article are classifiable individually in the
following headings: the stencils and stencil holder in heading
9017, the felt tipped markers in heading 9608, the sheets of
drawing paper in heading 4823, and the pencil in heading 9609.
The components of the "creative art" article are classifiable
individually in the following headings: the vinyl apron in
heading 3926, the crayons in heading 9609, the watercolor paints
in heading 3213, the printed pictures for coloring in heading
4911, the artist brush in heading 9603. Upon considering whether
any one heading would accommodate these components, we look to
heading 9503, HTSUS.
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 ENs to chapter 95 indicate that
a toy is an article designed for the amusement of children or
adults. It has been Customs position that toys should be
designed and used principally for amusement. The ENs to heading
9503 indicate that collections of articles, the individual items
of which if presented separately would be classified in other
headings in the nomenclature, are classified in chapter 95 when
they are put up in a form clearly indicating their use as toys.
In HRL 950700, issued August 25, 1993, we discussed the
circumstances in which certain items, normally classified
elsewhere in the HTSUS, may be classified in subheading 9503.70
as toys put up in sets. We noted that the subheading 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, and not by any
individual article in the combination. The components should
generally be used together, i.e., some connection exists between
the items which work collectively to provide amusement. When an
article is comprised of components individually classifiable
elsewhere in the HTSUS, the manner in which the items are put up -4-
together (e.g., packaged and sold as a combination) should
convert the components from their designs and uses as individual
articles, to toys.
In HRL 086330, issued May 14, 1990, this office held that a
retail package (similar to the "spiral art" set) which consisted
of stencils, a drawing ring, ball point pens, and a writing pad,
was an educational toy classified in subheading 9503.70, HTSUS.
We likewise find that the components of the "spiral art" set
comprise a combination designed and used principally for the
amusement of children. The stencils, stencil holder, pencil,
markers, and paper, are put up in a form clearly indicated for
use as an instructional toy. The article is thus properly
classified in subheading 9503.70.0030, HTSUSA.
With respect to the "creative art" set, the ENs to heading
9503, HTSUS, indicate that the heading excludes paints put up for
children's use (heading 3213), and crayons for children's use
(heading 9609). This exclusionary language suggests that
children's paints and crayons, if imported separately, are more
specifically provided for elsewhere in the nomenclature. It is
also apparent, however, that certain components of "creative art"
do not work well jointly (e.g., the crayons and watercolors),
stand apart from the others (e.g., the vinyl apron) and, when
packaged together, are used in the same manner as when
individually imported. In light of the above, we find that
classification of the "creative art" set in heading 9503, solely
by reference to GRI 1, is not appropriate. We thus look next to
GRI 2.
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) directs that the headings are regarded as equally
specific when each heading refers to part only of the items
contained in a set put up for retail sale. Therefore, to
determine under which provision the article will be classified,
we look to GRI 3(b), which states in pertinent part that:
goods...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. -5-
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
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.
In this case, we note that it is the role of the vinyl apron
to contain and keep the other components close at hand while the
child experiments with an array of artistic media. The apron
also helps to keep clothing and skin clean. While the other
components will be depleted and replaced, the vinyl apron's
nature entails durability for reuse. For these reasons, we find
that the apron is the component which supplies the set with its
essential character. The "creative art" set is classified in
subheading 3926.20.9010, HTSUS.
HOLDING:
The "Paint Art" and "Sponge Art" sets, identified by item
nos. 05030 and 05130, respectively, are classified in subheading
3213.10.0000, HTSUSA, the provision for "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: Colors in sets." The applicable duty rate is
6.5 percent ad valorem on the entire set.
The "Spiral Art" set, identified by item no. 05125, is
classified in subheading 9503.70.0030, HTSUSA, the provision for
"Other toys, put up in sets or outfits, and parts and accessories
thereof, Other: Other." The applicable duty rate is free.
The "Creative Art" set, identified by item no. 05020, is
classified in subheading 3926.20.9010, HTSUSA, the provision for
"Other articles of plastics and articles of other materials of
headings 3901 to 3914: Articles of apparel and clothing
accessories (including gloves): Other: Other, Aprons." The
applicable duty rate is 5 percent ad valorem.
This decision should be mailed by your office to the
internal advice requester no later than 60 days from the date of
this letter. After sixty days, the Office of Regulations and
Rulings will take steps to make the decision available to Customs -6-
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division