# HQ 965703

> August 13, 2002

# CLA-2 RR:CR:GC 965703 DBS

> **CATEGORY:** Classification
>
> **TARIFF NO.:** 4908.90.00
>
> Mr. Barry Levy, Esq.
>
> Sharretts, Paley, Carter & Blauvelt, P.C.
>
> 67 Broad Street
>
> New York, NY 10004
>
> **RE:** "Tattoo Graphix"; HQ 959232 revoked

Dear Mr. Levy:

On June 2, 1998, this office issued to you Headquarters Ruling (HQ)
959232, classifying "Tattoo Graphix" as a toy set in subheading
9503.70.00 of the Harmonized Tariff Schedule of the United States
(HTSUS). HQ 959232 revoked HQ 957894, dated December 14, 1995, in which
Customs had classified "Tattoo Graphix" in subheading 3926.10.00, HTSUS.
We have reconsidered HQ 959232 and believe that although the revocation
of HQ 957894 was proper, classification in subheading 9503.70.00, HTSUS,
was not. We are therefore revoking the classification determination made
in HQ 959232.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as
amended by section 623 of Title VI (Customs Modernization) of the North
American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107
Stat. 2057, 2186 (1993), notice of the proposed revocation of the above
identified ruling was published on July 10, 2002, in the [Customs
Bulletin]{.underline}, Volume 36, Number 28. No comments were received
in response to the notice.

**FACTS:**

The facts, as recited in HQ 959232, are as follows:

> \["Tattoo Graphix"\], identified as item no. 7007, contains the
> materials needed to \"\[m\]ake lots of cool & creepy tattoos!\" The
> article is composed of a plastic carrying case/storage case/ drawing
>
> surface (described as a \"creepy crawlers Tattoo machine\"), six
> sheets of tattoo designs, four non-toxic, colored markers, thirty
> sheets of blank tattoo paper, one plastic water applicator bottle, and
> a sheet of instructions, all of which are imported in a decorative
> cardboard box. The article is designed for use by children ages five
> and up. A child chooses a tattoo design to place under the tattoo
> paper in the case\'s frame. The design is then traced and colored on
> the tattoo paper and cut out (scissors not included). After the
> child\'s skin is moistened, the tattoo is placed on the skin, pressed
> or rubbed, then peeled back to reveal the tattoo. A child may also
> create his/her own designs. The retail package, which is suitable for
> direct sale without repacking, measures approximately 14 inches in
> length by 10 inches in height by 2 inches in depth.
>
> In HQ 957894, classification of the instant merchandise as a toy set
> of subheading 9503.70, HTSUS, was dismissed for two reasons. Customs
> stated that items were principally used for tracing, drawing, cutting
> and transferring, rather than for amusement. Customs found that the
> carrying case predominated over the other components because it
> directly related to the tracing, drawing, cutting and transferring of
> the decal since it was used as a carrying case, a storage case and a
> drawing surface. Customs instead classified the merchandise as goods
> put up in a set for retail sale according to GRI 3(b), which directs
> that the component that imparts the essential character of the set
> controls the set's classification. Customs found that the essential
> character of the set was the carrying case because it predominated
> over the other articles in the set by bulk, value and the multiple
> roles the case played in relation to the use of the set. The set was
> classified in subheading 3926.10, HTSUS, which at that time provided
> for plastic office or school supplies.
>
> In HQ 959232, Customs reconsidered HQ 957894, and determined that
> there was no basis to impose a rule that because the carrying case
> predominated over the other components, that it could not be a toy
> set. Customs ruled that because the items in the set were intended for
> use together to occupy the user in an amusing way, that it met the
> requirements for a toy, and specifically a toy set, thus classifying
> "Tattoo Graphix" in subheading 9503.70, HTSUS.

**ISSUE:**

Whether "Tattoo Graphix" is classifiable as a toy set of subheading
9503.70, HTSUS.

**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:

> **4908** Transfers (decalcomanias)
>
> 4908.90.00 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:

Subheading 9503.70.00, HTSUS, is an *eo nomine*, or specifically
enumerated, provision for a toy set. 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. Therefore, we must determine
whether the goods are toys.

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).

The EN for heading 9503 excludes transfers (decalcomanias) of heading
4908, HTSUS which provides *eo nomine* for transfers. Transfers are
described in the ENs, in pertinent part, as follows:

The EN 49.08 states, in pertinent part:

> Transfers (decalcomanias) consist of pictures, designs or lettering in
> single or multiple colours, lithographed or otherwise printed on
> absorbent, lightweight paper (or sometimes thin transparent sheeting
> of plastics), coated with a preparation, such as of starch and gum, to
> receive the imprint which is itself coated with an adhesive....
>
> When the printed paper is moistened and applied with slight pressure
> to a permanent surface (e.g., glass, pottery, wood, metal, stone or
> paper), the coating printed with the picture, etc., is transferred to
> the permanent surface.

The EN also provides: "Transfers produced and supplied mainly for the
amusement of children are also covered by this heading."

Decalcomania is defined in Merriam-Webster's Collegiate Dictionary,
10^th^ ed, as "the art or process of transferring pictures and designs
from specially prepared paper (as to glass)." The merchandise at issue
includes designs printed on paper that allows transfer to the skin when
moistened. It also includes blank paper upon which designs may be drawn,
and then transferred to the skin in the same manner as the printed ones.
These types of temporary tattoos are transfers (decalcomanias).
Moreover, Customs has always classified temporary tattoos that are
printed on paper that allows transfer to the skin once moistened under
heading 4908, HTSUS. *See, e.g.,* NY 879936, dated November 18, 1992; NY
88605, dated June 1, 1993; NY C89816, dated June 27, 1998; NY G86280,
dated January 22, 2001; NY H88827, dated March 4, 2002. Therefore, the
type of temporary tattoo that is transferred with moisture and pressure
from paper to skin is excluded from classification in heading 9503,
HTSUS.

In addition, the Tattoo Graphix set is designed to allow children to
create his or her own tattoos with tattoo paper and markers. 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.

Taken together, these exclusions and the EN for subheading 9503.70,
HTSUS, suggest that sets comprised of materials used for drawing are not
classifiable as a toy or toy set. Moreover, 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
085267, dated May 9, 1990, (ruling "Graffiti Gear" was not a toy set
because coloring lacks manipulative play value); 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); and HQ
962355, dated January 5, 2000 (ruling that four types of coloring sets
were not classifiable as toy sets but rather as a GRI 3(b) sets
classifiable by the article comprising the colored or decorated craft
and not the act of drawing).

Given the above, "Tattoo Graphix," a set of items that includes
already-made transfers and supplies to draw/color designs for transfers,
neither can be classified as a toy of heading 9503, HTSUS, nor as a toy
set of heading 9503.70.00, HTSUS.

As the merchandise is not a GRI 1 toy set classifiable in heading 9503,
HTSUS, we turn to GRI 3, which provides for goods that are *prima facie*
classifiable under two or more headings. 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 at least two headings (i.e., transfers in heading 4908,
markers in heading 9608, plastic bottle in heading 3923, etc.), they are
put up to carry out the specific activity of creating temporary tattoos,
and they are packaged together in a manner suitable for sale directly to
the user without repacking in a decorative cardboard box.

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." The transfers are the
purpose of the set. All of the components contribute to making or
applying transfers. Therefore, based on the role of the transfers in
relation to the use of the goods, the essential character of the set is
imparted by the transfers. Accordingly, the set is classifiable in
heading 4908, HTSUS.

**HOLDING:**

"Tattoo Graphix" is classifiable in subheading 4908.90.00, which
provides for "Transfers (decalcomanias): other."

**EFFECT ON OTHER RULINGS:**

HQ 959232, dated June 2, 1998, is hereby REVOKED. In accordance with 19
U.S.C 1625(c), this ruling will become effective 60 days after its
publication in the [Customs Bulletin]{.underline}.

Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division