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HQ 964002

September 18, 2001

CLA-2 RR:CR:GC 964002 KBR


TARIFF NO.: 3926.90.98

Mr. Tony Collini
John S. Connor, Inc.
The World Trade Center
401 E. Pratt Street, Suite 700
Baltimore, MD 21202

RE: Reconsideration of NY F80436; Pencil Toppers

Dear Mr. Collini:

This is in reference to your letter dated March 10, 2000, on behalf of A & A Global Industries, Inc., in which you requested reconsideration of New York Ruling Letter (NY) F80436, issued to you by the Customs National Commodity Specialist Division, dated January 13, 2000, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of plastic pencil toppers.


The products involved are plastic pencil toppers. The New York ruling also concerned the classification under the HTSUS of toy locks, for which you have not sought reconsideration. You submitted two different genres of pencil topper: one type in the shape of animals, and one type are sign-like objects. Further, you state that you also intend to import pencil toppers in the shape of “Power Rangers”, and possibly other designs as well. However, only the sign-like pencil toppers were involved in the importation subject to this reconsideration and this ruling will classify under the HTSUS only the sign-like pencil toppers.

The sign-like pencil toppers submitted come in five designs. All the designs are produced for the World Championship Wrestling, Inc. The designs read:

“4 Horsemen” - a name given to four wrestlers “NWO new world order” - a name given to four wrestlers “G” in a circle – standing for Goldstein, a wrestler “Big Poppa Pump” – a name given to a wrestler “Bang Diamond Dallas Page” – a wrestler and a word associated with him


Whether pencil toppers are classified as toys or according to their constituent material?


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

Other articles of plastics and articles of other materials of headings 3901 to 3914:


3926.90.98 Other

Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.90.00 Other

In your submission dated March 10, 2000, you cite NY 891879 (November 22, 1993), a case involving a “Spiderball Pencil Top Ball” which, when imported without the pencil, was found to be classified as a toy of subheading 9503.90.60, HTSUS. You state that Customs has also found that candy dispensers in the shape of “M & M” figures were classified as toys. You argue that although the items were “just sitting there” Customs found them to be “amusing” and, therefore, toys. You argue that Customs should not be the “sole authority on what is amusing.” Further you argue that any type of pencil topper should be classified as a toy when you state “Finally, toppers that are shaped in any other manner should come under HTS # 9503.90.0045.

Customs has consistently held that when a pencil combined with a topper is imported, the combined article is classified as the pencil under subheading 9609.10.00, HTSUS. See NY E84942 (July 28, 1999), NY D83399 (November 5, 1998), NY C83703 (February 5, 1998), NY D87323 (February 3, 1999), NY D87503 (February 16, 1999), NY 814070 (August 24, 1995). However, pencil toppers come in various types of shape, sizes and functions; such as erasers, characters, pencil sharpeners, whistles, etc. When imported separately from the pencil, Customs classifies the pencil topper according to its individual characteristics. See NY A84784 (July 2, 1996) (classified toppers featuring an “Etch A Sketch” and an “Eight Ball” as toys under subheading 9503.90.00, HTSUS); NY E82094 (May 28, 1999) (classifying stuffed teddy bear pencil toppers as a stuffed animal under subheading 9503.41.00, HTSUS); NY A80855 (March 25, 1996) (classifying a wooden animal pencil topper as a statuette and other ornaments of wood under subheading 4420.10.00, HTSUS). Therefore, Customs classifies the separately imported topper according to the topper’s own characteristics, not necessarily as a toy. The case that you cite, NY 891879, involves a “Spiderball” pencil topper. Balls are specifically described in the HTSUS as toys. In fact, the description of the “Spiderball” is very similar to a popular toy produced today called a “Koosh Ball”. Therefore, Customs determination that the “Spiderball” pencil topper should be classified as a toy follows common usage of the article as a toy.

The instant pencil toppers in the shape of a sign with various letters or wording associated with World Championship Wrestling are not designed to amuse. Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the amusement of children or adults. Although the term “toy” is not specifically defined in the tariff, the ENs to Chapter 95, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults.

In HQ 960136 (July 24, 1997), Customs cited United States v. Topps Chewing Gum, Inc., 58 CCPA 157, C.A.D. 1022 (1971), to give the following definition of a toy:
it was held that articles which may lack the material features to be a manipulative plaything as such, but because of their cartoon-like, comical appearance, or scary look, would likely be used as an interesting or novelty decorative object, are considered primarily used for amusement purposes or as a source of frivolous entertainment for children or adults. In other words, if the article’s appearance generates the same type of emotional reaction one derives from playing with objects commonly recognized as toys, the article’s principal use is to amuse. Therefore, the article is capable of being classifiable as a toy.

Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value to be classified as a toy. See HQ 960479 (November 24, 2000) (the primary use of a pillow-like article designed to resemble various creatures is in its amusement value, not its use as a pillow); HQ 958785 (July 26, 1996) (a “Lean On Me Activity Bolster” for a small child was properly classified in heading 9503 because the primary use of the item was as a toy); HQ 951309 (April 26, 1993) (the primary value of M&M novelty figures designed as lids for containers filled with candy was the play value; the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor).

The instant wrestling sign-like pencil toppers do not provide manipulative play value, do not have a cartoon-like appearance and do not evoke frivolous amusement or an emotional reaction. The instant pencil toppers are merely acting as decorative signs or advertisements. Therefore the instant pencil toppers are classifiable under subheading 3926.90.98, HTSUS as articles of plastic, other.


In accordance with the above discussion, the plastic pencil toppers are classified in subheading 3926.90.98, HTSUS as articles of plastic, other.

NY F80436 is affirmed.


John Durant, Director
Commercial Rulings Division

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