CLA-2: OT:RR:CTF:TCM H080600 CkG
Joann Mosqueda
JA-RU, Inc.
4030 Philips Highway
Jacksonville, FL 32207
Re: Tariff Classification of a plastic coin bank
Dear Ms. Mosqueda:
This is in reference to your request of September 30, 2009, on behalf of JA-RU, Inc., for a prospective ruling to determine the correct classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a plastic coin bank.
FACTS:
The merchandise at issue consists of a plastic cylindrical receptacle for the storage of coins, in the shape of a large crayon. A sample of the merchandise measures approximately 23 inches in length, is primarily orange in color with black decorative markings and has the word “crayon” printed along its length. There is a slot on the upper side for depositing coins and a removable plug on the bottom for withdrawing deposited coins.
ISSUE:
Whether the subject articles are toys of heading 9503, HTSUS, or articles of plastic of Chapter 39, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
The HTSUS provisions under consideration are as follows:
3924: Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
3924.10: Tableware and kitchenware:
3924.10.40: Other
3924.90: Other:
3924.90.56: Other
* * * * *
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…..
9503.00.00: Other………….
* * * * *
Chapter 39, Note 2(y) states:
This chapter does not cover…
(y) Articles of chapter 95 (for example, toys, games, sports equipment);
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
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 at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 39.24 provides, in pertinent part, as follows:
This heading covers the following articles of plastics:
(C) Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipovers).
EN 95.03 states, in pertinent part:
D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)….This group includes:
Educational toys (e.g., toy chemistry, printing, sewing and knitting
sets).
Toy money boxes; babies; rattles, jack-in-the-boxes; toy theatres with or without
figures, etc.
Certain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited use; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.
* * * * *
Classification within Chapter 39 is subject to Chapter 39, Legal Note 2(y), which excludes from Chapter 39 goods that are classifiable in Chapter 95, HTSUS. Therefore, as long as the subject article is described in Chapter 95, it is precluded from classification in any of the provisions of Chapters 39, even if it is described therein. We must therefore first address whether the subject article is described in heading 9503, HTSUS.
Although the term “toy” is not defined in the HTSUS, EN 95.03 provides that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons. U. S. v. Topps Chewing Gum, 58 CCPA 157, C.A.D. 1022 (1971) (hereafter Topps), is illustrative in determining whether an article is intended for the amusement of the user. In Topps, various decorative buttons with humorous quotes were classified as toys of heading 9503. The Court in Topps held that if the purpose of an object is to give the same kind of enjoyment as playthings give, its purpose is amusement. It is the quality of mind or emotion induced by the object which is controlling. Therefore, an article may be considered a toy if it is inherently or evidently amusing. See e.g., HQ 960136, dated July 24, 1997; HQ 959749, dated October 23, 1997; HQ 964834, dated May 23, 2002.
Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value for it to be classified as a toy. In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000), the court held that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33 (1977), the Customs Court similarly held that “when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement.”
The Minnetonka court further concluded that heading 9503, HTSUS, is a "principal use" provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS. Therefore, classification under the heading 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 the importation
In determining whether the principal use of a product is for amusement, and thereby classified as a toy, Customs considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels, class or kind of trade in which the merchandise moves; (4) the environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed); (5) usage, if any, in the same manner as merchandise which defines the class. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976).
The physical characteristics of the crayon bank are suggestive of a toy, as it appears designed primarily for the purpose of amusement rather than the storage of coins. The tall, thin shape of the plastic crayon bank is not sturdy standing upright. The addition of coins may steady it, but would prove difficult to retrieve due to the weight of the article when filled. The article further has some manipulative play value; a child can pretend to draw with the crayon, it can be swung around like a sword or a bat; in short, a child is likely to find it inherently amusing, and it is that quality which outweighs its usefulness as a bank.
As no information was provided with regard to the marketing, sale or advertisement of the crayon bank, we base our decision primarily on the object itself. We also note that CBP has classified similar coin banks as toys. See e.g., New York Ruling (NY) N019794, dated December 3, 2007 (Toy Guitar Drink Container); NY 816190, dated October 31, 1995 (a coin bank shaped as Mickey Mouse); NY G88182, dated March 28, 2001, and NY F85856, dated May 3, 2000 (plastic representations of a baby bottle with a screw on cap with a slit opening on top for insertion of coins); and NY L86796, dated August 5, 2005 (an elephant bank composed of a plastic body covered with plush on the outside surface). While these items also served as functional coin banks, their physical features evidenced that their primary purpose is for amusement.
We therefore do not find that the commercial viability of the item depends on the item functioning as a bank. The article is commercially viable as an amusing depiction of a crayon alone. Therefore, it is classified in heading 9503, HTSUS.
HOLDING:
By application of GRI 1, the subject article is classified in subheading
9503.00.00, 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: Other.” The 2009 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 on the World Wide Web at www.usitc.gov/tata/hts/.
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,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division