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HQ 964834

May 23, 2002

CLA-2 RR:CR:GC 964834 KBR


TARIFF NO.: 9013.80.90

Ms. Lara A. Austrins
Rodriguez O’Donnell Fuerst Gonzalez & Williams 20 North Wacker Drive
Suite 1416
Chicago, Illinois 60606

RE: Reconsideration of NY G84054 and NY G84871; Harry Potter Story Scopes

Dear Ms. Austrins:

This is in reference to your letter dated February 23, 2001, on behalf of Enesco Group, Incorporated, in which you requested reconsideration of New York Ruling Letters (NY) G84054 and G84871, issued to you by the Customs National Commodity Specialist Division, New York, dated November 22, 2000 and November 30, 2000, respectively, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Harry Potter Story Scopes. Samples of the products were submitted.


The Harry Potter Story Scopes are viewers that are made of colored polyresin. The Story Scope contains an eyepiece on one side; the eyepiece contains an optical element that is made of acrylic. The image inside the Story Scope is made of acetate. The optical element incorporated within the plastic housing of the Story Scope is a lens which gives 15.6 magnification of the image glued inside the plastic housing of the Story Scope. The image is a scene or a character from the Harry Potter stories by J.K. Rowling. The image is viewed by holding the Story Scope to the eye. A short narrative of the character or the scene will also be viewed through the eyepiece. You indicate in your letter that there will be twelve versions of the Story Scope and that each will differ in color, shape and the image shown inside. All will contain a lens that magnifies the image.

NY G84871 involves a Story Scope with a medallion attached. The bronze medallion is attached to the plastic housing by a metal eyehook screwed into the end across from the eyepiece. The medallion, approximately 1 inch in length by 1 ¾ inches in height by ½ inch in width, is stamped with the “Harry Potter” logo. The medallion has a metal clip welded onto the back. The Story Scope is hung on a point-of purchase backer card; each back card has a collector checklist printed on it. The descriptive literature indicates that the Story Scopes with bronze medallions can be clipped to anything.

NY G84054 involves a Story Scope which is packaged with a figurine. The figurine and the scope are not considered a set for tariff classification purposes. The figurine and the story scope have been separately classified. A ruling on the classification of the figurine was separately issued and you have not asked for reconsideration of that ruling and we will not consider it herein.

The packaging for both types of Story Scope states, “Collect Them All”. The packaging for both articles also makes the following statement:

WARNING: CHOKING HAZARD - - Small part(s). Not for children under 3 yrs. This is a collectible item and not a toy.

(italics and underline added).


What is the classification for the Harry Potter Story Scope with medallion and Harry Potter Story Scope with figurine?


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 provisions under consideration are as follows:

Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof:

Other devices, appliances and instruments:

9013.80.90 Other

9503 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

Chapter 95, HTSUS, 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.

The primary purpose of the item must be its amusement value to be classified as a toy. In Ideal Toy Corp. v United States, 78 Cust. Ct. 28 (1977), the court stated that "when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement." In HQ 085267 (May 9, 1990) Customs found that for a drawing kit including a jacket, “[a]lthough they may tend to amuse those who use them, such amusement is incidental to their primary purpose.” In HQ 961123 (December 18, 1998), Customs stated that:

It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. They should be more than accessories which entertain but have little or no manipulative play value.

In HQ 960859 (June 5, 1998), concerning a child safety seat with toy features, Customs stated that:

“[c]learly, elements of the [article] are designed to amuse a child. However, Customs believes those design elements are secondary to the article’s primary purpose.”

In HQ 961912 (October 28, 1998), Customs stated:

The physical characteristics of “Elmo’s 1-2-3 Sprinkler,” mainly its bright colors, “Sesame Street” motif and manipulation of water, appeal to a sense of fun and play with water. The ultimate purchaser expects to use this article as a water toy for children. It is traded in toy channels by a toy company. Its manner of advertisement and display all highlight its amusing qualities. All these characteristics indicate that [it] is designed principally to amuse.

In this instance, we do not find that the Harry Potter Story Scopes are “amusing.” The Story Scopes do not have any interaction or “manipulative play value”. The user looks through the eyepiece and sees a picture and a written statement in narrative form. There is no change to what is seen after looking through it once. There is nothing to do with the article other than looking through it. The nature of the picture and the narrative words in the Story Scope is not to generate ‘whimsy’ or excitement. We do not find that this will “generate the emotional reaction one derives from playing” or provide a “sense of fun and play”.

The U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See; Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979; HQ 961123 (December 18, 1998). The marketing of the Story Scopes is as a collectible, not a toy. Viewing the website for Enesco Group, Inc., shows that the company considers itself a “source for gifts, collectibles and home accents”, not toys. Throughout the website Enesco Group refers to their products as “giftware” and “collectibles”, including, specifically, for the merchandise concerning Harry Potter. The packaging encourages the buyer to “Collect them all”. Convincingly, the sample articles specifically state on the packaging, “This is a collectible item and not a toy.” We agree with Enesco Group’s statement. Therefore, the Story Scopes are not classifiable as a toy in chapter 95.

You argue that the Story Scopes do not fall within heading 9013, HTSUS, which includes “other optical appliances and instruments, not specified or included elsewhere in this chapter”. “Appliance” is defined in The Random House College Dictionary, Random House, Inc. (1973), at 65, as “an apparatus for a particular purpose”. Webster’s New Collegiate Dictionary, G. & C. Merriam Company (1979), at 54, defines “appliance” as “an instrument or device designed for a particular use”. We find that the Story Scopes fall within these definitions of “appliance”. Further, the ENs for 90.13 include articles such as kaleidoscopes. We note that the Story Scopes are similar to this type of article.

In support of your suggested classification , you refer to HQ 961254 (January 5, 1999), wherein Customs held that a Peter Pan Spyglass, a plastic hand-held telescope, was classifiable as a toy in subheading 9503.90.00, HTSUS. The determination in that ruling was based on the reasoning that the spyglass hardly functioned as a telescope. It was held to be an imitation of the real thing. Further, the physical characteristics appealed to a sense of fun and play. The Harry Potter Story Scopes and Story Scopes with medallions function in the manner in which viewers function, by allowing the user to see a scene or read text. Thus, the Story Scopes are classifiable as viewers in heading 9013, HTSUS.

Therefore we find that the applicable subheading for the story scope will be 9013.80.9000, HTSUS, which provides for Liquid crystal devices; lasers, other than laser diodes; other optical appliances and instruments not specified or included elsewhere in this chapter; other devices, appliances and instruments; other .


In accordance with the above discussion, the Harry Potter Story Scopes are classified in subheading 9013.80.9000, HTSUS, which provides for Liquid crystal devices; lasers, other than laser diodes; other optical appliances and instruments not specified or included elsewhere in this chapter; other devices, appliances and instruments; other

NY G84871 and NY G84054 are affirmed.


John Durant, Director
Commercial Rulings Division

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