OT:RR:CTF:CPMM H329399 NAH
TARIFF NO: 9503.00.0073
Mr. George Tuttle, III, Esquire
Tuttle Law Offices
3950 Civic Center Drive, Suite 310
San Rafael, CA 94903
RE: Classification of "Real Littles Micro Crafts"
Dear Mr. Tuttle:
This letter is in reference to your correspondence, dated January 13, 2023, on behalf of your client Moose Toys Pty Ltd., requesting a binding ruling concerning the tariff classification of "Real Littles Micro Crafts" under the Harmonized Tariff Schedule of the United States (HTSUS). You claim classification under subheading 9503.00.00, HTSUS, as other toys. With respect to the kits identified as do-it-yourself (DIY) "DIY Glitter Globes," "DIY Light Box," "DIY Fizz Bomb," and "DIY Unicorn Terrarium," we agree that they are properly classified under subheading 9503.00.0073, HTSUSA (Annotated). CBP will not rule on the classification of the fifth and final kit, "DIY Backpack." The DIY Backpack is substantially similar to products and classification issues that are subject to ongoing protests and applications for further review already before CBP.
FACTS:
The products are smaller versions of craft type kits that include various miniature toy-like items, which are packaged together for retail sale and marketed as collectible craft projects designed for children. The five kits at issue consist of DIY miniature-themed, boxed craft kits, which contain all the components needed to create a specific craft. Each craft kit comes complete with step-by-step instructions and includes a miniature carabiner, which is designed to attach the miniature carry box (in which the crafts are packaged for retail sale) to a child's backpack or beltloop. Each of the items provided in the kits are significantly smaller in size than their life-sized counterparts. The following 5 Samples of "Real Littles Micro Craft Kits" were provided for our review:
1. The "Real Littles Micro Craft - DIY Glitter Globes," (DIY Globes) contain a miniature globe forming base, 2 miniature glitter globes, a miniature glitter globe base, a miniature glitter globe sealing base, miniature figurines that depict an oyster, a unicorn whale and coral, a mini eyedropper, glitter, a miniature carabiner to attach to the carry box and instructions.
2. The "Real Littles Micro Craft - DIY Light Box," (DIY Light Box) contains a miniature toy light box, lightbox letters, unicorn, rainbow, smiling face, etc., for sliding into the viewing grooves of the light box, a miniature carabiner to attach to the carry box and instructions.
3. The "Real Littles Micro Craft - DIY Fizz Bomb," (DIY Fizz Bomb) contains a miniature spoon for measuring and stirring, 2 zippered pouches, 4 reaction packets, 2 mixing cups , 2 miniature molds, a miniature carabiner to clip to the carry box and instructions.
4. The "Real Littles Micro Craft - DIY Unicorn Terrarium," (DIY Terrarium) contains a miniature plastic terrarium bottom and top, miniature foam grass, a miniature plastic pool, miniature rocks, a miniature tool to distribute miniature rocks , 3 miniature toy-tree figurines, 2 miniature crystals, a miniature shrub and miniature unicorn, a miniature carabiner to clip to the carry box and instructions.
5. The "Real Littles Micro Craft - DIY Backpack," (DIY Backpack) contains a miniature backpack, miniature felt pens in 4 colors to decorate the miniature backpack, a miniature "BFF" tag for decorating with felt pens, 2 miniature carabiners to clip tag to miniature backpack and to clip to carry box, and instructions.
The miniature carry box that protects, transports, and packages all the components of the DIY kits measure approximately: 4" wide by 3" tall by 3" deep. The carry box is hard plastic with a hinged lid and a hinged plastic handle on top of the lid. The carry boxes are composed of various colors but primarily contain blues, purples, and pinks. All five DIY kits are advertised as appropriate for children of six years or older.
ISSUE:
What is the classification of each of the DIY "Real Littles Micro Crafts" kits.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event the goods cannot be classified solely based on 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.
GRI 6 provides that for legal purposes, classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.
The HTSUS subheadings under consideration are the following:
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:
"Children's products? as defined in 15 U.S.C. 2052:
Other:
Labeled or determined by importer as intended for use by persons:
9503.00.0073 3 to 12 years of age
Note 1 to Chapter 95, HTSUS, states, in part:
This chapter does not cover:
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(d) Sports bags or other containers of heading 4202, 4303 or 4304;
Note 4 to Chapter 95, HTSUS, states:
Subject to the provisions of Note 1 above, heading 9503 applies, inter alia, to articles of this heading combined with one or more items, which cannot be considered as sets under the terms of General Interpretative Rule 3(b), and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 95.03 states, in pertinent part:
This heading covers:
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(D) Other Toys.
This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes :
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(E) Reduced-size ("scale") models and similar recreational models.
This includes models of a kind mainly used for recreational purposes, for example, working or scale models of boats, aircraft, trains, vehicles, etc., and kits of materials and parts for making such models, other than sets having the character of competitive games of heading 95.04 (e.g., sets comprising slot-racing motor cars with their track layout).
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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).
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This heading also excludes:
a) Paints put up for children's use (heading 32.13).
b) Modelling pastes put up for children's amusement (heading 34.07).
c) Children's picture, drawing or colouring books of heading 49.03.
(d) Transfers (heading 49.08).
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(ij) Crayons and pastels for children's use, of heading 96.09.
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You assert all five DIY kits are correctly classified under 9503.00.00, HTSUS. 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, 2013 Ct. Intl. Trade LEXIS 112, Slip Op. 2013-107 (CIT 2013) (citing Additional U.S. Rule of Interpretation 1(a)). EN 95.03 makes clear that a collection "put up in a form clearly indicating their use as toys" should be classified under 9503, HTSUS. The term "toy" is not defined in the tariff. As such, CBP is tasked with determining the scope of the term by relying upon its own understanding of the term, and by consulting dictionaries, lexicons, and other reliable sources. Medline Indus. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995). In Springs Creative Prods. Group, supra, the Court of International Trade ("CIT") stated that "an object is a toy only if it is designed and used for diversion, amusement, or play, rather than for practical purposes." The court there held that the fabric panels designed for assembly by children, with or without the help of adults, into throw blankets comprised a toy because the resulting blanket had limited utility. The value of the merchandise came from its utility as a source of play and amusement while assembling the blanket rather than from use of the finished fleece throw itself.
Pursuant to Note 4 to Chapter 95 and EN 95.03, collections of articles, the
individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in heading 9503 when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).
CBP addressed the classification of similar products in Headquarters Ruling Letter (HQ) H289680, dated July 1, 2019, concerning various kits for the assembly of charm bracelets, pendant necklaces, and other jewelry. In HQ H289680, CBP meticulously parsed the difference between kits that were designed for the amusement of children and those that were designed to allow the quick assembly of cheap jewelry. Simply put, the amusement of children during the process of assembly should outweigh the utilitarian value of the assembled product.
In contrast, CBP determined in HQ H154039, dated May 27, 2011, that a "Giant Art Jar" (consisting of 26 ABC felt shapes, 15 wooden craft sticks, 40 wiggly eyes, 15 wooden buttons, 7 spools, 30 buttons of assorted shapes, confetti, 10 colored sheets of paper, 6 colors of crepe paper, white craft glue, glitter glue, craft scissors, 3 paper plates, 3 paper bags, 15 feathers, 78 assorted pom-poms, 2 ricrac, 10 pipe cleaners, sequins and 6 foam shapes) was not classified as a kit or set in heading 9503, HTSUS. The Giant Art Jar was a collection of disparate items that could be used for various crafts. A menagerie of general craft supplies is distinguishable from a kit which contains a precise number of materials to create a single or a finite number of items or toys. Ultimately, CBP classified each item in the Giant Art Jar individually.
The products in the instant case more closely resemble those at issue in HQ H289680. Here, the DIY kits are clearly designed to produce a finite number of assembled items based on a review of the carry box contents and the included instructions. Each DIY kit consists of various components, all of which are included within the carry box and are referenced in the included instructions. Generally, the components are prima facie classified in different headings. However, the included instructions clearly indicate that each component is intended to be used in conjunction with the rest of the DIY kit. Therefore, if the combination of components in any of the DIY kits have the essential character of a toy, then Note 4 to Chapter 95 and EN 95.03 direct the kits to classification in heading 9503 without requiring a GRI 3 analysis.
The DIY kits at issue, just as in Springs Creative Prods. Group and previous classification rulings, except for the DIY Backpack, are designed and used for diversion, amusement, or play, and the kits, following assembly, have limited utility. The primary purpose of the DIY kits is to provide amusement for children as young as six years of age through the creative process of designing the interior of tiny globes, choosing the words and images that appear on a light box, crafting miniatures from molds, and curating a unique space for a unicorn. The kits present a significant range of design possibilities for children to experiment with and the ability to then transport, in the carry box, and show-off the assembled kits is of limited value compared to the creative process required to assemble them. The value of the DIY kits comes from the assembly or reassembly of the kits and not from the utility or value of the end product. As such, the four DIY kits, the DIY Globes, DIY Light Box, DIY Fizz Bomb, and DIY Terrarium, are appropriately classified under 9503.00.0073, HTSUSA, as "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 DIY Backpack is critically different from the other four DIY kits and must be addressed separately. In Simon Mktg. v. United States, 29 CIT 1111, 1122, 395 F. Supp. 2d 1280, 1291 (2005), the CIT held that to "classify every eye-catching, child-friendly article as a toy, simply because it enhances a child's imagination, is to unacceptably blur the HTSUS headings defeating their purpose and leading to absurd results." Further, in Ideal Toy Corp. v United States, 78 Cust. Ct. 28 (1977), the court stated that ""when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement." Not all merchandise that provides amusement is properly classified as a toy. The HTSUS explicitly acknowledges that reality by excluding certain products from being classified as toys irrespective of the design for children or the amount of amusement the merchandise provides to a child. The ENs to 95.03 further clarify that paints, modeling pastes, picture books, drawing books, colouring books, transfers, crayons, and pastels should not be classified under 9503, HTSUS, even if they are explicitly designed or intended for children's use. CBP has consistently held the amusement derived from assembling a kit must outweigh the utilitarian value of the finished product. Compare HQ H251116, dated November 23, 2015 (holding that a fully assembled, undecorated, paperboard coffin clutch purse was not a toy because the clutch was durable enough to perform a utilitarian purpose of carrying items and the amusement garnered from decorating it was too low to outweigh the utilitarian function); HQ W968411, dated May 1, 2009 (holding that a plastic and Velcro watch assembly kit was not a toy because the amusement derived from assembly was exceeded by the utilitarian purpose of timekeeping); HQ 960859, dated June 5, 1998 (holding that a child safety seat with toy features designed to amuse a child did not outweigh the article's primary purpose as a seat); with HQ H254152, dated February 29, 2016 (holding a book design kit contained too flimsy of materials for the utilitarian decoration to exceed the amusement and value of the decorating process); HQ H258767, dated August 25, 2015 (holding that glitter and foam kits have practically no economic use beyond that of a play thing and therefore are toys); see also HQ H289680, dated July 7, 2019 (weighing the amusement versus utility of DIY kits for children).
Within the carry box of the DIY Backpack, one finds a miniature backpack, miniature felt pens in 4 colors to decorate the miniature backpack, a miniature BFF tag for decorating with felt pens, 2 miniature carabiners to clip tag to miniature backpack and to clip to carry box. The entire focus of the DIY kit is decorating the miniature backpack. Unfortunately, the analysis must end there because the miniature backpack in the DIY kit is substantially similar to the products in and raises the same classification analysis at issue in your existing Application for Further Review and Protest # 3002-22-104032. As such, CBP will not rule, here, on the proper classification of the DIY Backpack.
HOLDING:
By application of GRIs 1 and 6, the DIY Globes, DIY Light Box, DIY Fizz Bomb, and DIY Terrarium are classified in heading 9503, HTSUS, and specifically in subheading 9503.00.0073, HTSUSA, 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 2024 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.
Sincerely,
Andrew M. Langreich, Chief
Chemicals, Petroleum, Metals and
Miscellaneous Articles Branch