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HQ 965249




February 12, 2002

CLA-2 RR:CR:GC 965249 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8206.00.00; 8513.10.20

Ms. Joan Jerome
Import Manager
Allied International
13207 Bradley Ave.
Sylmar, CA

RE: "Junior Trucker" Tool Set, Model 69091; Reconsideration of NY H81882, dated June 19, 2001

Dear Ms. Jerome:

This is in response to your request of August 22, 2001, requesting reconsideration of New York Ruling Letter (NY) H81882, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of an article marketed as "Junior Trucker." NY H81882 was issued to Ms. Linda Hamaka on behalf of A.W.I. Acquisition Co., which we understand is now part of Allied International. A sample was submitted with your request.

FACTS:

You describe the sample as a toy tool set consisting of 10 sockets, one ratchet handle, four screwdrivers, 16 hex keys, one adjustable wrench, one slip joint pliers, one hammer, one flashlight, one tape measure, a small plastic compartment box. The tools fit into a plastic molded case that is in the shape of an 18 wheeler truck. The flashlight is positioned at the front of "the truck" so that if it is turned on, it looks like a headlight. This set is designed for and marketed to children ages 8 and up.

The molded case measures about 20" by 7" by 3" and is fitted in the interior with molded plastic to secure the tools. The case is sturdy enough to withstand substantial rough use and will easily support a 200 pound adult without any damage being done to the contents. The cardboard band around the case states "Real Working Tools For Small Hands" and depicts a boy and a girl about 10 years old using the tools to replace the wheels on their skateboard.

ISSUE:

Whether the "Junior Trucker" Tool Set is classifiable within heading 9503, HTSUS, as toys; in heading 8206, HTSUS, as tools of two or more of the headings of 8202 to 8205, put up in sets for retail sale, dutiable according to the rate applicable to article in the set subject to the highest rate of duty.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported 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.

Heading 9503, HTSUS, provides for other toys and subheading 9503.70 provides for "Toys put up in sets or outfits." The ENs to Chapter 95 indicate that "this chapter covers toys of all kinds whether designed for amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUS. Customs defines principal use as that use which exceeds each other single use of the article. The ENs to heading 9503 further indicate that among other toys, the heading covers "(9) Toy tools and implements; children's wheelbarrows." The ENs to heading 9503 state that "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."

The tools under consideration may have been designed for "small hands", but they are nonetheless usable tools. They may not be suitable for a car mechanic in that they have not been specially tempered, but they are entirely useable for the kinds of small jobs that might interest the age group for which they are intended. In other words, the limitation on the use of these tools is marginal. By contrast, the "toy tools and implements" typically classified according to the cited EN would be such things as toy rakes and hoes that a child might play with alongside the adult with its counterpart of the real rake or hoe. These toy implements of the example do not perform a task, except to permit the child to imagine that it is performing a desirable adult activity. In the instant case, since the article will not be principally used as a toy, it is not classifiable within heading 9503. In our opinion, the article does not provide the play activity characteristic of toys.

You refer to Headquarters Ruling Letter (HQ) 087841, dated November 23, 1990, in which a toy tool set is classified in subheading 9503.70.80, HTSUS. That decision dealt with an article produced by a well-known toy company for sale in toy stores with an imitation "real" toolmaker name in its title. By contrast, the instant product contains "real", albeit scaled-down, tools produced by a company that appears to be basically a tool company. We note also that other rulings issued to your company concerning tools for children, namely, Port Ruling Letter PD E85230, dated August 17, 1999, and NY G82096, dated September 21, 2000, also contained articles of clothing clearly included to encourage a "dress-up" play activity to enable the user to emulate or mimic the identified adult activity. For example, PD E85230 contained a hard hat, goggles, work gloves, suspenders, and nylon tool pouches with belt, while NY G82096 contained safety goggles and a baseball cap. These articles of clothing and other non-tool articles in this context belong to the world of make-believe and play activity, thereby distinguishing the "Junior Carpenter" and "Junior Mechanic" from the "Junior Trucker" under consideration in this decision.

In NY H81882, dated June 19, 2001, Customs classified the "Junior Trucker" Tool Set in heading 8206, HTSUS, the provision for tools of two or more of headings 8202 to 8205, put up in sets for retail sale. The EN for this heading states that "Sets including tools of minor importance from other headings of Chapters of the Nomenclature remain classified in this heading, provided that such minority items do not change their essential character of sets of tools of two or more of the headings Nos. 82.02 to 82.05." The flashlight of heading 8513, is considered to be one of the items of minor importance from the set which does not change the set's essential character and that provides the heading from which the duty rate is derived.

HOLDING:

The "Junior Trucker" Tool Set, Model 69091, is properly classified in subheading 8206.00.00, HTSUS, the provision for tools of two or more of headings 8202 to 8205, put up in sets for retail sale, with the duty rate derived from subheading 8513.10.20, HTSUS.

NY H81882 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division


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