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HQ W968020

May 31, 2006



TARIFF NO.: 6307.90.9889

Mr. Dennis A. Morse
BDP International
2929 Walker NW
Grand Rapids, MI 49544

RE: Reconsideration of NY L88572; Aquadoodle Draw and Doodle Mat

Dear Mr. Morse:

This is in reference to your letter dated December 1, 2005, on behalf of Meijer Distribution, Inc., in which you requested reconsideration of New York Ruling Letter (NY) L88572, issued to you by the Customs and Border Protection (“CBP”) National Commodity Specialist Division, New York, dated November 15, 2005, concerning the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of Aquadoodle Draw and Doodle mat, Item number 70678. A sample of the product was submitted. NY L88572 also concerned an Aquadoodle Coloring Mat, Item number 70685, but your letter did not ask for reconsideration concerning the classification of this second article. This ruling will not discuss Item number 70685.


The Aquadoodle Draw and Doodle mat, Item number 70678 (“Aquadoodle”), is a textile fabric mat packaged with two marker pens that are intended to be filled with water before use. The Aquadoodle is intended for use by children. The mat measures 32 inches by 32 inches with a 4 inch red border. The border is printed with the name of the article and several “stick figure” designs. Just inside the border the mat is printed with the alphabet on the right and left sides, and numbers 1 through 10 along the top and bottom. The rest of the mat has no printing on it. When the water-filled pens touches the mat, the water causes the mat to change color so that a child can write or draw on the mat without making a mess. When the water dries, the marks on the mat disappear and the child can draw on a clean mat again.

In NY L88572, CBP determined that the Aquadoodle was a set for tariff classification purposes, with the essential character determined by the textile mat. NY L88572 classified the Aquadoodle in subheading 6307.90.9889, HTSUSA, as “[o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther.”


Is the Aquadoodle classifiable as a “toy” or an “other made up article”?


Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA 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, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUSA. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

6307 Other made up articles, including dress patterns:

6307.90 Other:


6307.90.98 Other:


6307.90.9889 Other.

9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.70.0000 Other toys, put up in sets or outfits, and parts and accessories thereof.

First, we note that the Aquadoodle consists of a mat and pens put up as a set for retail sale. These different articles in the set are prima facie classifiable in different headings in the HTSUSA. Because classification cannot be determined under GRI 1, CBP must apply the other GRIs. GRI 3(b) provides that:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

EN (X) for GRI 3(b) states:

(X) For the purposes of this Rule, the term " goods put up in sets for retail sale " shall be taken to mean goods which :

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The Aquadoodle meets the GRI 3(b) and attendant EN (X) definition of “goods put up in sets for retail sale.” First, the Aquadoodle consists of at least two different articles which are, prima facie, classifiable in two different headings. Secondly, the items are put up together to carry out the specific activity of drawing and the items will be used together or in conjunction with one another. Lastly, the articles are put up in a manner suitable for sale directly to users without repacking. We thus find that the Aquadoodle qualifies as a set of GRI 3(b); and the textile mat imparts the essential character to the set.

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 General 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), CBP 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), CBP 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), CBP stated that “[i]t 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, CBP 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), CBP 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 Aquadoodle is “amusing.” We do not find that this will “generate the emotional reaction one derives from playing” or provide a “sense of fun and play”. See HQ 964834 (May 23, 2002).

The Aquadoodle is designed to be a drawing instrument. Drawing and coloring are activities capable of providing amusement, but the ENs exclude from heading 9503, HTSUS, many articles that are used in drawing, coloring and other art activities. EN 95.03 states, in part, that heading 9503 excludes:

Paints put up for children’s use (heading 32.13). Modelling pastes put up for children’s amusement (heading 34.07). Children’s picture, drawing or colouring books of heading 49.03. Transfers (heading 49.08).
Bells, gongs or the like, of heading 83.06. Card games (heading 95.04).
Paper hats, “blow-outs”, masks, false noses and the like (heading 95.05). Crayons and pastels for children’s use of heading 96.09. (ij) Slates and blackboards, of heading 96.10.

We find that the Aquadoodle is similar to several of the excluded articles listed in the EN for heading 9503. As a drawing instrument, the Aquadoodle is similar to paints in (a); children’s picture, drawing or colouring books in (b); crayons and pastels in (h); and slates and blackboards in (ij).

These exclusions provide that articles and sets comprised of articles used for drawing or coloring are not classifiable as toys or as toy sets (classified according to GRI 1 under heading 9503). The fact that the drafters of the Harmonized System upon which the US tariff schedule is based provided for the above-listed articles eo nomine in headings other than heading 9503, HTSUSA, evinces an intent by the drafters that they not be considered toys. To that end, CBP has long construed the scope of heading 9503, HTSUSA, to exclude such articles and sets. See HQ 967796 (February 28, 2006)(holding rubbing templates are not classifiable as toys in heading 9503, HTSUSA).

CBP has never considered writing, coloring, drawing or painting to have significant "manipulative play value," for purposes of classification as a toy. Further, CBP does not classify the tools for writing, coloring, drawing or painting as toys since those tools are not designed to amuse. In HQ 085267, dated May 9, 1990, CBP found that, with respect to the items listed in the ENs for 9503, "[a]lthough they may tend to amuse those who use them, such amusement is incidental to their primary purpose." That is, not all merchandise that provides amusement is properly classified in a toy provision. The listed items were further described as having primarily a drawing and craft function. See also, HQ 960420, dated July 25, 1997 (determining that a set consisting of washable markers and stuffed textile items printed with designs was not a toy set); HQ 962355, dated January 5, 2000 (ruling that four types of coloring sets were not classified as toy sets but rather as GRI 3(b) sets classified by the article comprising the colored or decorated craft and not the act of drawing); HQ 965195 dated August 15, 2002 (classifying “Doodle Clings” coloring sets according to GRI 3(b) and not as toy sets). See also, HQ 959189 dated September 25, 1996 (classifying stencil drawing sets not as toys); HQ 958063, dated February 13, 1996 (classifying a battery-operated drawing pad with pen for children as a drawing instrument of heading 9017 and not a toy because it was designed to facilitate drawing, not to amuse); HQ 953922, dated November 17, 1993 (classifying the “Video Painter” and "Design Studio Accessory Kit,” which included several stencils under heading 9017 for the same reason); and HQ 962327, dated June 23, 2000, (determining that an art activity set was not put up in a form indication use as toys and thus was not classifiable as a toy set at GRI 1, nor a GRI 3(b) set for retail sale); HQ 958152, dated April 2, 1996 (classifying light-up desk with designs for tracing as a drawing instrument) and HQ 958805, dated February 8, 1996 (classifying "Trace N' Color" in heading 9017).

The amusement derived from art-related activities is secondary to utility because those articles and sets used for drawing, coloring and other art-related activities are not “essentially playthings.” HQ 966198 (July 21, 2003). CBP stated in HQ 966724 (May 24, 2004):
many articles designed for children and sold in toy stores are not toys. Many articles from which a child derives amusement are not essentially playthings. Such articles may provide amusement, but they are not designed to amuse. As such, they are not classifiable as toys. For example, children's play may include drawing or painting; however, materials for drawing or painting are not classified in heading 9503, HTSUS. See generally HQ 957958 (February 8, 1996); HQ 958063 (February 13, 1996); HQ 966198 (July 21, 2003).

The Aquadoodle is a set designed to be used by a child for purposes of drawing. Therefore, pursuant to the above analysis, we find that the Aquadoodle is not classifiable as a toy in heading 9503. The Aquadoodle is classified in heading 6307, specifically in subheading 6307.90.9889, HTSUSA, as “[o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther.”


In accordance with the above discussion, the Aquadoodle is classified in heading 6307. It is provided for in subheading 6307.90.9889, HTSUSA, as “[o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther.” The 2006 column one, general rate of duty is 7% ad valorum.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.


NY L88572 is affirmed.


Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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