CLA-2 OT:RR:CTF:TCM H154039 GC
Mr. Gregory Watts
Damco Customs Services, Inc.
680 Knox Street, Suite 200
Torrance, California 90502
RE: Classification of art supplies
Dear Mr. Watts:
This is in response to your letter of February 1, 2011, on behalf of Panline USA Incorporated, in which you request a binding ruling on the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the “Giant Art Jar”. Your ruling request was forwarded to this office from the U.S. Customs and Border Protection (CBP) National Commodity Specialist Division for reply. Per your request, the provided sample will be returned.
FACTS:
The “Giant Art Jar” is identified by part number 170WX. It consists of a large plastic container that features a plastic lid and a fold-out plastic handle. The label of the container features lists of the contents in different languages along with various safety warnings. The text “4+” also appear on the label to indicate that the product is designed for children of four years of age and over. The following art supplies are inside the container in separate plastic bags: 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. In addition to the above-referenced art supplies, a single-page instruction sheet provides directions on how to make the following items: greeting cards, flower cards, a spaceship, wall decorations, a “pom-pom monster”, and a bird.
ISSUE:
Whether Note 4 to Chapter 95, HTSUS, allows the instant combination of products to be classified as a toy of heading 9503, HTSUS?
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.
In this case, you ask us to apply Note 4 to Chapter 95, HTSUS, to classify the items that comprise the “Giant Art Jar” together as a single toy of heading 9503, HTSUS, 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….”
Note 4 to Chapter 95, HTSUS, states, in pertinent part, that:
[H]eading 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 [GRI 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 not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
With respect to the application of Note 4 as it relates to the classification of products in heading 9503, HTSUS, EN 95.03 states, in pertinent part, the following:
Also, as provided by Note 4 to this Chapter, subject to Note 1 to this Chapter, this heading includes articles of the heading combined with one or more items which would be classified in other headings if presented separately, provided that:
the combined items are put up together for retail sale, but the combination cannot be considered as a set under the terms of General Interpretative Rule 3 (b); and
the combination has the essential character of toys. Such combinations generally consist of an article of this heading and one or more items of minor importance (e.g., small promotional articles or small amounts of confectionery).
The first requirement to classify items together under Note 4 to Chapter 95, HTSUS, is that at least one item would be classified under heading 9503, HTSUS, if presented separately. See Headquarters Ruling Letter (HQ) H069897, dated September 1, 2009. In this instance, there is no indication that any of the items contained in the “Giant Art Jar” would be independently classified as a toy under heading 9503, HTSUS.( Accordingly, Note 4 to Chapter 95, HTSUS, does not apply to require all of the component materials of the instant merchandise to be classified together as a toy. There is no need to determine whether remaining requirements of Note 4 are satisfied.
This case differs from the craft kits classified in New York Ruling Letter (NY) N052291, dated March 11, 2009, which you cited as support for classification under heading 9503, HTSUS. In NY N052291, CBP classified as toys of heading 9503, HTSUS, various craft kits that were composed of all of the items necessary to construct specific toys of limited utilitarian value (e.g., a caterpillar or a guitar picture). Similarly, the “Paperwork Collage Art Assemblage Set” subject to HQ 087202, dated September 12, 1990, contained the items necessary to create collages. Here, we are presented with a collection of items that can be used for various crafts, rather than just the right amount of materials to create a finite number of toys. This is supported by the fact that the instruction sheet accompanying the “Giant Art Jar” provides directions on how to make a few items using only a portion of the subject materials. Thus, the instruction sheet merely provides ideas on how the craft materials can be used.
In this regard, we find that HQ 962566, dated August 31, 1999, controls the classification of the instant merchandise. In HQ 962566, CBP (then the U.S. Customs Service) separately classified “24 chenille stems”, “22 pompons”, “24 wiggle eyes”, and “24 craft sticks”.
Like the instant merchandise, the craft materials subject to HQ 962566 were packaged with a “project ideas” list of suggested projects. Furthermore, as none of the items considered in HQ 962566 were independently classified as toys of heading 9503, HTSUS, the conclusion to classify them separately would not have been changed by the addition of Note 4 to Chapter 95, HTSUS. Accordingly, in the instant matter, Note 4 to Chapter 95, HTSUS, does not apply to require that the items packaged in the “Giant Art Jar” be classified together as a toy of heading 9503, HTSUS. The component materials should be classified separately.
HOLDING:
Note 4 to Chapter 95, HTSUS does not apply to require the combination of craft-related items contained in the subject “Giant Art Jar” to be classified together as a single toy of subheading 9503.00.00, HTSUS. These component materials are to be separately classified. If you require a ruling on the classification of each component material, we encourage you to submit a ruling request to the CBP National Commodity Specialist Division at One Penn Plaza, 10th Floor, New York City, New York 10119.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch