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HQ 957131

February 27, 1995

CLA-2 CO:R:C:F 957131 GGD


TARIFF NO.: 3213.10.0000; 3926.20.9010; 9503.70.0030

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.


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).


In what tariff provisions are the sets properly classified?


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.


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.


John Durant, Director
Commercial Rulings Division

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