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HQ 967247

November 17, 2004

CLA-2-RR:CR:GC 967247 IOR


TARIFF NO.: 8505.19.0040, 9503.70.0080, HTSUSA

Port Director
Customs and Border Protection
330 Second Ave. South, Suite 560
Minneapolis, MN 55401

RE: Protest AFR No. 3501-04-100026; Magnetic word and other kits

Dear Port Director:

This is our decision on the application for further review (AFR) of protest no. 3501-04-100026 against the liquidation of magnetic word and other kits, under the Harmonized Tariff Schedule of the United States (HTSUS). The subject three entries were liquidated on June 18, 2004, and July 2, 2004, and this protest and AFR was timely filed on July 2, 2004.


The articles in question consist of magnetic word and other kits. The names of the kits imported by the three entries are “Erotic Kit,” “Creativity Kit,” “First Words,” “Love Kit,” “Shakespeare,” “My Friend,” “Storymaker,” “Original Kit,” “Office Kit,” “Kids’ Kit,” “Spanish Kit,” “French Kit,” “German Kit,” “Italian Kit,” “Cat Lover,” “Dog Lover,” “Healing Words Kit,” “Golf Kit,” “Genius,” “College,” “Rock & Roll,” “New York,” “High School Kit,” “Gardener,” “Horse Lover,” “Party Kit,” “Kids’ Spanish,” “Fridge Door Fortune Teller,” “Body Double,” and “Kid’s Booklet.” We have been provided with samples of “Original Kit,”, “Add & Subtract,” “In Other Words,” “French,” and a “Backpack Backgammon,” and a catalog of the various products. Of the samples provided, the “Add & Subtract,” “In Other Words” and “Backpack Backgammon” were not a subject of any of the three protested entries and their classification will not be addressed in this decision. However, to the extent they are useful for purposes of describing an item that is the subject of the protest, they will be discussed.

All of the kits consist of flexible magnets, each covered with an adhesive strip on one side on which is printed a word or design. For the “Kids’ Spanish” kit, the back side of the magnet has the English translation of the Spanish word adhered to the front. Although we do not have a sample of the “Kids’ Spanish” kit, a depiction of the kit in the catalog shows that the English word is in white letters on a black background, and appears to be the same as the “In Other Words” kit which has a word in white printed on the magnet itself, and both sides of the magnet stick to a metal surface.

The “Original Kit” is contained in a retail box, with the following statements printed on the front of the box: “produce an elaborate language symphony,” “over 400 words & word fragments for literally billions of poetic possibilities,” and “reveal creative parts of yourself you never knew existed.” The inside flap describes the kit as follows:

This is the one that started it all. In the spring of 1993 cab driver and songwriter Dave Kapell came up with the Magnetic Poetry Kit as a simple yet powerful tool for writing lyrics. Since then, millions of people all over the world have gathered around Magnetic Poetry laden fridges, having fun with words while creating evocative verse. Open this box and feel the power of the magnetic muse! Words that stick to your fridge, locker or any steel surface. A box of words searching for meaning on a sea of metal.

The back of the box is printed with the following:

Welcome to the world of Magnetic Poetry. Inside this box are hundreds of carefully selected magnetic word tiles ready to install on your fridge or any steel surface. Poetry will almost magically emerge as you arrange the words into phrases, with results ranging from the bizarre to the profound. Loved by all, from published poets to those who have never written a word, this Magnetic Poetry Kit is sure to provide many hours of silent musing, earnest discussion and riotous laughter! [M]agnetic poetry [b]etter poetry through refrigeration.

All of the word kits are substantially the same, however the words contained therein have different themes depending on the name of the kit. For example, the “First Words” kit contains words which are often part of early reading curricula, such as “go,” “going,” “green,” “monkey,” and “moon.” The magnets in the “First Words” kit are ¾” tall, whereas the magnets in the “Original Kit” are 3/8” tall. The “Shakespeare” kit contains words such as “bawdy,” “wicked,” “haste,” “love,” and “wherefore.” The “Creativity Kit” includes 90 colorful geometric design magnets and 260 word and phrase magnets.

Two kits that are different from the word kits are the “Fridge Door Fortune Teller” and “Body Double” kits. The “Body Double” kit contains 25 different “body photo magnets” which consist of photos of, for example, a muscle man, a baby and a ballerina, which are cut off at the neck in a semicircle so that a photo placed under the magnet, at the neck, would result in a new body placed on the photo. The catalog describes the magnets as giving “the photos on your fridge or locker new bodies and new personas as you hold them up with this image changing collection of body photo magnets.”

The “Fridge Door Fortune Teller” consists of 80 triangle shaped magnets with one of four different colorful printed symbols adhered to one side of each magnet, and three print stamped words on the back of each magnet, one word along each side of the triangle. Examples of the words printed on the back of the magnet are “destroy,” “grow,” “create” and “infinite.” Also in the center of the back of each magnet are the words “yes” or “no.” The instructions state to ask a question and then turn over four magnets, one of each symbol, and then read the words along the bottom for the answer. In the case of a “yes” or “no” question, the answer is in the ratio of the “yes” to “no.”

The protestant has submitted eleven testimonial letters received by the company from consumers of the various word kits. Five of the testimonials praised the kits as beneficial learning tools for children and young adults, some including poems written using the kits, and one testimonial addressed the appropriateness of the word selection for “composing.” The remaining five testimonials addressed the efficiency of the sales staff, submitted additional ideas for the product, or generally expressed satisfaction with the product.

The kits were liquidated under subheading 8505.19.0080, HTSUS, as “Electromagnets, permanent magnets: Permanent magnets: OtherOther.” The protestant takes the position that the merchandise should have been liquidated under subheading 9503.70.0030, HTSUS, as “Other toys: Other toys, put up in sets,” in accordance with Headquarters Ruling Letter (HQ) 957014. The protestant states that the merchandise at issue is “imported for amusement”, “are not magnets per se, used to affix notes or other things to metal surfaces such as refrigerators.”

With respect to the item identified on the invoice, for entry H42-xxxx386-9, as “Kid’s Booklet,” that item is not in the catalog, nor is it separately addressed in the protest, therefore we are precluded from addressing the liquidation of that item, as it was not protested, other than as a magnetic kit.


Whether the magnetic word and non-word kits are classifiable as magnets under heading 8505, HTSUS, or toys under heading 9503, HTSUS?


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 HTSUS subheadings under consideration are as follows:

Electromagnets; permanent magnets and articles intended to become permanent magnets after magnetization;.: Permanent magnets and articles intended to become permanent magnets after magnetization: 8505.19.00 Other.

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

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The EN’s to heading 85.05 describe permanent magnets as “pieces of hard steel, special alloys or other materialswhich have been rendered permanently magnetic.” The EN’s also state that permanent magnets remained classified in heading 85.05 “whatever their use, including small magnets used, inter alia, as toys.” The subject merchandise is clearly covered by the terms of Heading 8505, HTSUS. The merchandise consists of magnets, and whether or not they are used to affix other things to the refrigerator is not determinative of their classification.

Section XVI Note 1(p) provides that the section, which contains Chapter 85, does not cover articles of Chapter 95. Therefore, before the merchandise can be classified under heading 8505, HTSUS, we must determine whether the magnetic word and other kits are classified under heading 9503, HTSUS, as asserted by the protestant.

Although the term "toy," in general, is not specifically defined in the tariff, the ENs to Chapter 95, HTSUS, indicate that "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." It has been the Customs and Border Protection (“CBP”) 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. In the tariff context, “amuse” is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. The EN's to heading 9503 state that "collections of articles, the individual item of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets)."

The protestant relies on HQ 957014, dated January 5, 1995, stating that the ruling held that the merchandise at issue, “enumerated as magnetic words, letters, and numbers are properly classified as toys of Chapter 95.” The merchandise at issue in HQ 957014, was described as “the numbers zero through nine, and, and seven arithmetic symbols (plus, minus, equal, etc.),” and “individual letters comprising a complete alphabet plus ten extra letters,” of plastic with a built in magnet for use on a metal surface. It was determined that the magnetic numbers, letters and symbols in that case were designed and used principally for the amusement of children.

The magnetic word and other kits at issue are substantially different from the letters, numbers and symbols, which were the subject of HQ 957014. Except for the “Body Double” kit, the subject items contain entire words or phrases, as opposed to individual letters and numbers. The magnets consist of relatively small flat tiles that are not as simple to grasp and manipulate by a young child as the items in HQ 957014. The EN’s to heading 95.03 state that the heading “covers toys intended essentially for the amusement of persons,” and specifically include in the list of covered items “educational toys.” In order to classify the word kits as a toy, they would have to be both educational and designed to amuse. The subject items are designed and used principally for literary, poetic, and educational pursuits, and not to amuse. CBP has never considered “writing” to have significant “manipulative play value” for purposes of classification as a toy. In this case, as the words simply need to be placed together, the “manipulative play value” is similar to that of “writing.” While we find that there is some play value in the ability to move the magnets around, the principal use of the magnets is the composition of sentences and phrases. Similarly, with respect to the geometric designs in the “Creativity Kit,” the principal use is to create a design for display as opposed to manipulation for frivolous amusement. Therefore, we find that the word kits are not akin to the pieces in HQ 957014, and are not classified in heading 9503, HTSUS.

With respect to the “Body Double” kit, it is a novelty means of attaching a photograph to a metal surface, no different from the magnetic frame. A magnetic frame was determined to be classified as a magnet in HQ 953320, dated May 4, 1994.

With respect to the “Fridge Door Fortune Teller” kit, it provides random answers to questions posed, and does not entail composition by the user. According to the instructions, the user is to turn over certain symbols in order to receive a response to a question. In addition, the symbols can be rotated prior to being turned over so that the answer varies. The concept is similar to that which was the subject of NY K88665, dated August 16, 2004, in which an item called the “Decision Maker” was determined to be classified as a toy. We find that the “Fridge Door Fortune Teller” kit is designed to provide frivolous amusement for adults, and is classified under heading 9503, HTSUS. Each magnet in the kit, on its own, would be classified as a magnet, however, the fact that the magnets are put up together with a variety of symbols and words, indicates their use as a toy. The “Fridge Door Fortune Teller” kit is classified specifically in subheading 9503.70.00, HTSUS, as “[o]ther toys;: Other toys, put up in sets or outfits, and parts and accessories thereof.”

As the word and “Body Double” kits are not classifiable as toys under heading 9503, HTSUS, they are classified as permanent magnets under heading 8505, HTSUS, specifically under subheading 8505.19.0040. CBP has taken the position that with respect to magnets of this type, which have the obviously utilitarian function of magnetism, are permanent magnets under heading 8505, HTSUS, and the magnetism provides the essential character of the article, whether or not it is a composite article. See HQ 953320, supra.


By application of GRI 1, magnetic word kits and body photo kits are classified in subheading 8505.19.0040, HTSUSA, as “Electromagnets: permanent magnets and articles intended to become permanent magnets after magnetization.: Other,” with a column one, general duty rate of 4.9%, and the “Fridge Door Fortune Teller” kit is classified in subheading 9503.70.0080, HTSUSA, as “Other toys;: OtherOther,” with a column one, general duty rate of “free.” Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

The protest should be DENIED, except to the extent reclassification of the “Fridge Door Fortune Teller “ kit, as indicated above results in a partial allowance. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide

Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director
Commercial Rulings Division

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