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HQ 958086

May 20, 1996

CLA-2 RR:TC:FC 958086 ALS


TARIFF NO.: 9503.90.0030; 9503.90.0070

MS. Michele R. Markowitz
Attorney at Law
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad St.
New York, NY 10004

RE: Activity Sets For Children, Goop FX Detail Pens, Combination Packages of Metal Molds and Official plasti-Goop

Dear Ms. Markowitz:

This is in reference to your request for a ruling on the subject Goop FX detail pens, which was extended to cover activity sets containing that product and metal molds with an oven and combination packages containing metal molds and official plasti-Goop but without an oven. Samples of these products have been furnished. We have met with importer representatives and a member of your local office and have telephonically discussed the issues with your local representative.


The Goop FX detail pens are designed to be used with children's activity sets known as "Creepy Crawlers" (designed for boys) and "Dolly Maker" (designed for girls). They are composed essentially of a PVC resin, a plasticizer, silicone rubber powder and pigment and comes in a variety of colors. The Goop FX, a relatively thicker version of official plasti-Goop, which is used to make various creatures and forms, is used to decorate those items by adding stripes, dots, patterns, etc. to those items before they are solidified in an oven. The official plasti-Goop may be referred to by other names, e.g., Genuine Glamor Goop, depending on the items with which it is packaged.

The activity sets contain a molding oven, two metal molds containing various shapes on each mold, e.g., insects in the case of the Creepy Crawlers set, and four bottles of official plasti-Goop compound which is used to fill the shapes in the individual molds, a mold handler, a prying tool and a cooling tray. The "Dolly Maker" sets also contains doll stands, bendable wire pieces and various accessories such as miniature shoes and purses for the final solidified product. A child using the activity sets would place a quantity of official plasti-Goop, perhaps decorated with Goop FX, in the metal mold and then heat it in the oven to make the desired product. After heating in the oven, essentially a plastic box with a 60 watt light bulb which heats the Goop until it solidifies, the plastic product is removed from the mold and used by the child.

A variety of the molds, official plasti-Goop and Goop FX are also packaged in various combinations, without the oven as well as being separately sold. The oven is only available as part of an activity set. The combination packages may also contain various accessories for use with the items produced with the molds and official plasti-Goop contained in a particular package.

Counsel advises us that the primary components of the activity sets are the oven, the official plasti-Goop/Goop FX and the metal molds and that the other items are merely ancillary to those components. Counsel has also indicated that the official plasti-Goop, Goop FX and molds are for use solely or principally with the oven contained in the activity sets and that the official plasti-Goop cannot otherwise be used since it will not solidify by exposure to air or to heating in a regular oven. The metal molds are designed to be used with a plastic mold handler and to fit into a slot in the heating oven. Counsel believes that the activity sets are toys and that the detail pens and the items in the combination packages are accessories to the activity sets and should be considered as toys whether or not packaged with those sets.


Are the subject items includable within the terms toys or parts and accessories of toys?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering this matter we note that the oven provided in the activity sets, whose heating mechanism is a 60 watt light bulb, would be considered a toy in accordance with a note to heading 9503 in the Explanatory Notes to the Harmonized System (EN) relative to chapter 95. That note indicates that heading 9503 of the Harmonized System includes certain toys, e.g., electric irons, which may be capable of a limited "use" but are generally distinguishable by their size and limited capacity from the real item.

We also note that 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 EN to chapter 95 suggest that a toy is an article designed for the amusement of children or adults. The EN to heading 9503 further indicates that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets, and that collections of items separately classifiable in other headings are classified in chapter 95 when put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry sets, sewing sets, etc.). The EN also state that heading 9503 excludes children's picture, drawing or coloring books of heading 4903, and crayons and pastels for children's use of heading 9609. A subheading explanatory note to subheading 9503.70 states, in pertinent part, that for the purposes of the subheading, "[s]ets" are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facility the use of the articles may also be included."

In Headquarters Ruling Letter (HRL) 950700, dated August 25, 1993, we discussed the circumstances in which certain items may be classified in subheading 9503.70, as toys put up in sets. We stated that the application of the toy set provision is relatively straightforward when each item within a set would individually be classified as a toy, as opposed to an assortment (such as in this case) which consists entirely (or partly) of items that individually would be classified elsewhere in the HTSUSA. In either case, we noted that subheading 9503.70, 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, not by any individual item. No individual article should predominate over any other in the combination, and the components should generally be used together to provide amusement.

We initially considered the possible classification of the primary components of the activity sets, i.e., oven, goop and molds, if those items were separately imported and if it was not clear that they were solely or principally for use with the sets. We found that the "limited use" oven, would, in accordance with the EN to chapter 95, supra, qualify as a toy classifiable in subheading 9503.90.0030, HTSUSA, the provision for "...Other toys (except models), not having a spring mechanism..." The metal molds, which help produce a permanent product when the official plasti-Goop is solidified by heating in the oven, and cannot then be transformed into another item, would, because of such permanency, be classifiable with industrial molds in subheading 8480.79.9090, HTSUSA, the provision for "molds for rubber or plastics: Other types: Other, Other molds." Since the official plasti-Goop/Goop FX is of rather thin consistency, we do not agree with counsel that it would be includable in the provision for modeling pastes in heading 3407. We believe that these products which, as previously noted, are composed essentially of a PVC resin, a plasticizer, silicone rubber powder and pigment color, would be classifiable in subheading 3904.22.0000, HTSUSA, which covers "Polymers of vinyl chloride...: Other polyvinyl chloride: plasticized."

Therefore, it is necessary to refer to GRI 3 to classify these activity sets. Since each heading refers only to a part of the set, classification pursuant to GRI 3(a) is not possible. Accordingly, we next refer to GRI 3(b) regarding articles put up - 5 -
in sets for retail sale. EN X to GRI 3(b) provides the criteria for determining whether goods are to be considered to be "goods put up in sets for retail sale." The activity sets meet 2 of those requirements insofar as they contain articles classifiable in different headings and are put up for sale in a manner suitable for sale directly to users without repacking.

We note that EN VI to GRI 3(b) states that "the goods are to be classified as if they consisted of the material of component which gives them their essential character,..." EN VIII to that GRI provides guidance as to the factors which determine the essential character of goods. These include the nature of the component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. While the oven is clearly the predominant item if we consider bulk and value, we do not believe that item can be considered to provide the essential character of the activity set. Similarly, while the molds or plasti-Goop might predominate under other criteria, particularly if one were to look at their role in relation to the use of the goods, i.e., they are needed to perform any activity, we do not believe that either of those items gives the activity sets their essential character. While no activity could be performed without them, no activity could be performed without the oven. Accordingly, we have concluded that the activity sets cannot be classified according to any one of the above items and that they are all essential to the product.

Therefore, it is necessary to refer to GRI 3(c) which provides that when goods cannot be classified by reference to GRI 3(a) or 3(b), they are to be classified in the heading which occurs last in numerical order among those which equally merit consideration in determining their classification. As noted above, the goods which give the activity sets their substance are the plastic material of chapter 39, the metal molds of chapter 84 and the "limited use" oven of chapter 95. Accordingly, we have concluded that the activity sets should be classified in chapter 95. Classification in subheading 9503.90.0030, HTSUSA, which covers the oven, is appropriate, in this case.

We next turn to the classification of the official plasti-Goop and Goop FX, when separately imported. The EN to heading 9503 provides that such heading covers identifiable parts and accessories of the articles in that heading, which are suitable - 6 -
for use solely or principally therewith, provided they are not excluded from chapter 95 by the Legal Note 1 thereto. We find that these items are not so excluded. We further find that these articles, which are parts of the sets when imported therewith, are for use solely or principally with the sets when separately imported, the official plasti-Goop is to replace a previously used quantity of that product. Accordingly, these items are classifiable under subheading 9503.90.0070, HTSUSA.

The metal molds, when separately imported, may similarly be intended to replace molds which have become worn or damaged. It is, however, more likely that they are to enhance the previously purchased sets by providing an additional variety of shapes and items that can be made with the official plasti-Goop and oven. In such case the molds would be considered accessories to the sets.

We note that groupings of the above items, except for the oven, are also separately imported in combination packages. Items so grouped would be classifiable in the same manner as when those items are separately imported, as noted above.

Items in the sets, e.g., doll shoes, doll stands, would, be includable in subheading 9503.90, HTSUSA, as constituents of the set. Such items, when not imported with the activity set, including the oven, would be classifiable in the specific subheading relative to that item, e.g., 9502.91, HTSUSA, for doll shoes. Since there appears to be a wide variety of such items, which may or may not be solely or principally used with this class of merchandise, we are not ruling on them at this time. The importer should request a specific ruling on such items if they will be imported in packages other than the complete sets.


The articles identified as Dolly Maker and Creepy Crawlers activity sets, containing official plasti-Goop/Goop FX, metal molds and a heating oven for solidifying items and shapes made of the plastic goop in such molds, are classifiable in subheading 9503.90.0030, HTSUSA. The subheading covers items described as "Other toys; and accessories thereof: Other, Other: Other toys (except models), not having a spring mechanism." Metal molds and official plasti-Goop/Goop FX, which are solely or principally - 7 -
used with components of the aforementioned sets, are similarly classifiable in subheading 9503.90.0070, HTSUSA, when individually imported or imported in combination packages containing more than one of those items, but not containing an oven. Articles so classifiable are subject to a free rate of duty.


John Durant, Director
Tariff Classification

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