# HQ 965195

> August 15, 2002

# CLA-2 RR:CR:GC 965195 DBS

> **CATEGORY:** Classification
>
> **TARIFF NO.:** 4911.91.40
>
> Port Director
>
> U.S. Customs Service
>
> 111 W. Huron St., Rm. 603
>
> Buffalo, NY 14202
>
> **RE:** Protest 0901-01-100030; "Doodle Clings" coloring kit; NAFTA

eligibility

> Dear Port Director:

This is our decision on Protest 0901-01-100030 filed against your
classification, under the Harmonized Tariff Schedule of the United
States (HTSUS), of "Doodle Clings." The entries were liquidated on
November 24, 2000 and the protest timely filed on January 9, 2001.

**FACTS:**

The subject merchandise is identified as "Doodle Clings," which is an
assortment consisting of a background scene printed onto a sheet of
paper, two sheets of pressure sensitive paper stickers and six
felt-tipped markers. The background illustration and paper stickers are
depictions of popular cartoon movies such as "Scooby Doo," "How the
Grinch Stole Christmas," and "Toy Story," and are designed to be colored
in with the markers. The stickers are to be placed on the background
page to form a scene, or may be placed on various surfaces, such as
windows, doors or walls. The adhesive is such that it allows the
stickers to be removed and transferred to other surfaces. However,
because the stickers are made of paper, the edges are damaged when
removing a sticker from a surface.

You determined the product qualified as goods put up in sets for retail
sale having no essential character, and thus classified the set

according to the heading which occurred last in numerical order among
those which equally merit consideration. In this case, the provision for
markers, subheading 9608.20.00, HTSUS, occurs last, and you liquidated
the goods accordingly.

The protestant contends that the merchandise should be classified in
subheading 9503.70.00, HTSUS, as other toys, put up in sets or outfits.
Alternatively, the protestant claims that the essential character of the
set is the printed pictures, provided for in subheading 4911.91.40,
HTSUS. The product is assembled in Canada. The background is of Canadian
origin, the stickers are from the United States, and the markers are
from Italy. Classification under heading 4911, HTSUS, supports the
protestant's claim for NAFTA treatment under the qualifying rule that
requires a change to heading 4901 through 4911 from any other chapter.
Finally, the protestant claims that the merchandise is NAFTA qualifying
even if the non-originating markers do not undergo the requisite tariff
change because the markers are de minimis for NAFTA purposes.

**ISSUES:**

Whether the "Doodle Clings" coloring set is classifiable as a toy set of
heading 9503, HTSUS, or as a GRI 3(b) set.

If it is a GRI 3(b) set, which component imparts the essential
character?

Does the non-originating good undergo a tariff change that would qualify
the merchandise for NAFTA treatment?

**LAW AND ANALYSIS:**

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.

In understanding the language of the HTSUS, the Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) may be utilized.
ENs, though not dispositive or legally binding, provide commentary on
the scope of each heading of the HTSUS, and are the official
interpretation of the Harmonized System at the international level.
Customs believes the ENs should always be consulted. See T.D. 89-80, 54
Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

> **4911** Other printed matter, including printed pictures and
> photographs:
>
> Other:
>
> 4911.91 Pictures, designs and photographs:

Printed not over 20 years at the time of importation:

> Other:
>
> 4911.91.40 Other.
>
> \* \* \*
>
> **9503** Other toys; reduced-size ("scale") models and similar
> recreational models, working or not; puzzles of all kinds; parts and
> accessories thereof:
>
> 9503.70.00 Other toys, put up in sets or outfits, and parts and
> accessories thereof:
>
> \* \* \*
>
> **9608** Ball point pens; felt tipped and other porous-tipped pens and
> markers; fountain pens, stylograph pens and other pens; duplicating
> styli; propelling or sliding pencils (for example, mechanical
> pencils); pen-holders, pencil-holders and similar holders; parts
> (including caps and clips) of the foregoing articles, other than those
> of heading 9609:
>
> 9608.20.00 Felt tipped and other porous-tipped pens and markers

I. [Toy Set of Subeading 9503.70, HTSUS]{.underline}

Protestant contends the merchandise is classifiable according to GRI 1
as a toy set of heading 9503, HTSUS. The Subheading EN for 9503.70,
HTSUS, explains that "sets" and "outfits" of the subheading are
"\[s\]ubject to substantiated classification in heading 9503...." That
is, to be a set or outfit of subheading 9503.70, HTSUS, the group of
articles put up as a set or outfit must first be classifiable as a toy
(or other article) of heading 9503, HTSUS.

The term \"toy\" is not defined in the HTSUS. However, the general EN
for Chapter 95 states that the \"Chapter covers toys of all kinds
whether designed for the amusement of children or adults.\" The court
construes heading 9503 as a \"principal use\" provision, insofar as it
pertains to \"toys.\" *See Minnetonka Brands v. United States*, 110 F.
Supp. 2d 1020, 1026 (CIT 2000).

When the classification of an article is determined with reference to
its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides that, in the absence of special language or context which
otherwise requires, such use is to be determined in accordance with the
use in the United States at, or immediately prior to, the date of
importation, of goods of that class or kind to which the imported goods
belong, and the controlling use is the principal use. In other words,
the article\'s principal use at the time of importation determines
whether it is classifiable within a particular class or kind.

In HQ 960420, dated July 25, 1997, we ruled that \"Color-Me Pals,\" a
set consisting of six washable markers and three stuffed textile items
printed with designs, was not classifiable pursuant to GRI 1 as a toy
set in heading 9503, HTSUS. We stated that despite the fact that both
drawing and coloring are activities capable of providing amusement, not
all merchandise that provides amusement is properly classified in a toy
provision. We noted that the ENs exclude from heading 9503, HTSUS,
certain articles that are used to draw and color, when those items are
individually presented. The ENs state, in part, that heading 9503
excludes:

\(c\) Children\'s picture, drawing or colouring books of heading
49.03\....(h) Crayons and pastels for children\'s use, of heading
96.09\....(ij) Slates and blackboards, of heading 96.10.

Although none of the \"Color-Me Pals\" components was classifiable in
the excluded headings above, the ENs provide an indication that the
collection of colored markers and textile items is not put up in a form
that suggests intended use as a toy. We found that, like its individual
components, the complete article was not principally designed to amuse,
but to provide a means to draw and color.

Customs has never considered writing, coloring, drawing or painting to
have significant \"manipulative play value,\" for purposes of
classification as a toy. Nor does Customs classify the tools for
writing, coloring, drawing or painting as toys since those tools are not
designed to amuse. *See* HQ 960279, dated December 9, 1997 (stating
above supporting ruling that the educational toy at issue was not
classifiable as a toy set for lack of manipulative play value); HQ
085267, dated May 9, 1990 (ruling "Graffiti Gear" was not a toy set for
the reasons set forth above in HQ 960420); HQ 963475, dated January 5,
2000 (affirming the rationale in HQ 085267, though modifying the ruling
to find that "Graffiti Gear" was a GRI 3(b) set); HQ 962355, dated
January 5, 2000 (ruling that four types of coloring sets were not
classifiable as toy sets but rather as GRI 3(b) sets classifiable by the
article comprising the colored or decoration craft and not the act of
drawing). "Doodle Clings" are comparable to the "Color-Me Pals" because
both are comprised of articles with some play value that are printed
with designs for coloring, and markers to color in the designs. Thus, we
find the rationale of HQ 960420 compelling.

Protestant contends that the merchandise is similar to "Tattoo Graphix,"
classified in HQ 959232, dated June 2, 1998, in heading 9503, HTSUS. The
result of this ruling is inconsistent with the rulings cited above.
Moreover, we reviewed that ruling and found it to be incorrect on its
face because EN 95.03 exclusionary note (d) excludes "transfers" from
classification in heading 9503, HTSUS. Notice was published on July 10,
2002, in the Customs Bulletin, Volume 36, Number 28, proposing to revoke
HQ 959232. The final notice will be published in a forthcoming edition
of the Customs Bulletin revoking HQ 959232 by HQ 965703, dated August
13, 2002, to reflect Customs long standing position.

We recognize there is some play value in the ability to stick the
stickers on various surfaces and move them around, as there was some
play value in the textile "Color-Me Pals." However, the stickers are not
actually easily removed, as are other items such as, for example, the
plastic Colorforms pieces, because "Doodle Clings" are made of paper
whose edges are often destroyed as one tries to remove a sticker. The
"Doodle Clings" provide little more than a means for a child to color.
We therefore find the principal use of the "Doodle Clings" is coloring.
Accordingly, it is not classifiable in heading 9503, HTSUS.

II\. [GRI 3(b) sets for retail sale and essential character]{.underline}

Protestant alternatively contends that the "Doodle Clings" is a set
according to GRI 3(b), and that its essential character is imparted by
the printed paper. GRI 3 provides for goods that are *prima facie*
classifiable under two or more headings. Here, the background are
classifiable in subheading 4911.91.40, HTSUS, which provides for other
printed pictures not printed more than 20 years from importation. The
stickers are also classifiable in this subheading, as EN 49.11(10)
provides for "Self-adhesive printed stickers designed to be used, for
example, for publicity, advertising or mere decoration, e.g. "comic
stickers" and "window stickers." The felt tipped markers are
classifiable in subheading 9608.20.00,HTSUS, which provides for felt
tipped and other porous-tipped pens and markers.

GRI 3(b) instructs that mixtures, composite goods, and goods put up in
sets for retail sale shall be classified by the component which gives
them their essential character. The components must either be considered
as a set or classified individually. The components constitute "goods
put up in sets for retail sale," if they satisfy the following criteria
set forth in EN (X) to GRI 3(b). Goods are classified as sets put up for
retail sale if they:

> \(a\) 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).

We find these goods qualify as a set because the articles are
classifiable in two headings, are put up to carry out the specific
activity of coloring pictures of popular cartoon characters, and are
packaged together in a manner suitable for sale directly to user without
repacking.

The EN VIII to GRI 3(b), states, "The factor which determines essential
character will vary as between different kinds of goods. It may, for
example, be determined by the nature of the material or component, its
bulk, quantity, weight or value, or by the role of a constituent
material in relation to the use of the goods." In HQ 962355, *supra,* we
ruled that *Color Me* Silk Passepartout (all occasion note cards),
*Color Me* Silk Scarf, *Color Me* Silk Tie and *Color Me* Silk Window
Decorations craft sets had the essential character of the articles in
each that provided the finished product, as opposed to that which
provided the means of coloring. Similarly, the background print and the
stickers will endure once colored. Moreover, the designs are of popular
cartoon characters which provide the main appeal of the merchandise.
Moreover, as we discussed with respect to the "Color-Me Pals," the
markers are rendered useless once the fluid has been dispensed. The
colored in picture and stickers will endure. Therefore, the printed
paper components give the set its essential character.

As we find the set has an essential character, it is unnecessary for you
to employ GRI 3(c). Accordingly, the set is classifiable in subheading
4911.91.40, HTSUS, as "Other printed matter, including printed pictures
and photographs: other: pictures, designs and photographs: printed not
over 20 years at time of importation: other: other"

III\. [NAFTA]{.underline}

In cases where non-originating materials are used to produce a good in a
NAFTA country and in order to qualify for the NAFTA preferential
treatment, the non-originating material, under applicable provisions of
General Note (GN) 12, HTSUS, and the NAFTA Rules of Origin Regulations
(ROR) (19 C.F.R. Part 181, App.) must: undergo a change in tariff
classification; undergo an applicable change in tariff classification
and meet regional value content requirements; or simply meet regional
value content requirements, as applicable to the specific situation.
*See* GN 12(b), HTSUS, and 19 C.F.R. part 181, app. § 4(2)(a) -- (c),
the former which states, in pertinent part, that:

> For purposes of this note, goods imported into the customs territory
> of the United States are eligible for the tariff treatment and
> quantitative limitations set forth in the tariff schedule as "goods
> originating in the territory of a NAFTA party" only if --
>
> . . . .(ii) they have been transformed in the territory of Canada,
> Mexico, and/or the United States so that --

(A) except as provided in subdivision (f) of this note, each of the
    non-originating materials used in the production of such goods
    undergoes a change in tariff classification described in
    subdivisions (r), (s) and (t) of this note or the rules set forth
    therein, or

(B) the goods otherwise satisfy the applicable requirements of
    subdivisions (r), (s) and (t) where no change in tariff
    classification is required, and the goods satisfy all other
    requirements of this note. . . .

Noting that the article at issue is classifiable in heading 4911, HTSUS,
the applicable rule is GN 12(t)/49, which states: "A change to headings
4901 through 4911 from any other chapter."

In the instant case, the non-originating markers, classifiable in
heading 9608, HTSUS, undergo the necessary change in tariff
classification as set forth in GN 12(t)/49 when assembled into the
coloring set, as the set is classifiable in heading 4911, HTSUS.
Therefore, "Doodle Clings" qualify for NAFTA preferential treatment.

As the set qualifies for NAFTA treatment under GN 12, HTSUS, by virtue
of a tariff change from heading 9608, HTSUS, to heading 4911, HTSUS, it
is unnecessary to address protestant's de minimis argument.

**HOLDING:**

"Doodle Clings" coloring sets are classified in subheading 4911.91.40,
HTSUS, which provides for, "Other printed matter, including printed
pictures and photographs: other: pictures designs and photographs:
printed not over 20 years at time of importation: other: other"

The protest should be GRANTED as to the alternative classification
claimed.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be
accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

> Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division