# HQ 966484

**August 12, 2003**

## CLA-2-RR:CR:GC 966484 RSD

**CATEGORY**: Classification

**TARIFF NO.** 9503.70.00

Mr. Alan Morgan

Wal-Mart Stores, Inc.

Mail Stop \# 0410-L 32

601 N. Walton

Bentonville, Arkansas 72716-0410

**RE:** Plastic rock tumbler kit; Toys

Dear Mr. Morgan:

This is in response to your letter dated April 15, 2003, addressed to
the Director, Customs National Commodity Specialist Division, New York,
requesting a ruling on the classification under the Harmonized Tariff
Schedule of the United States (HTSUS) of a plastic rock tumbler kit with
accessories for making jewelry. Your letter was submitted to this office
for a reply. A sample of the rock tumbler kit at issue was provided, and
will be returned to you under a separate cover.

**FACTS:**

The subject merchandise is a rock tumbler kit. The kit consists of a
rock tumbling machine and various items that are used in making jewelry
and key chains. The rock tumbling machine is an electrically operated
device for polishing rocks, stones, and minerals. It is entirely made of
plastic with the exception of a 2-watt (0.00268 horsepower) output
motor. The rock tumbling machine weighs less than two pounds. The rock
tumbling machine has an on-off button. It also has three other buttons
that set the time period that the rock tumbling machine will operate: 1
day, 2 days, or 4 days. The longer the rock tumbling machine operates,
the more polished the stones will become. It is our understanding that
in order to obtain highly polished stones, the rock tumbling machine
will have to operate considerably longer than 4 days, perhaps up to a
month. The subject rock tumbler has a maximum load of 16 oz., but the
suggested load is 8 oz.

In addition to the rock tumbling machine, the kit contains the following
supplies for polishing stones: 8 oz. gemstone rocks, one bag step-1
coarse-grind powder, one bag step-2 fine-grind powder, and one bag
step-3 polishing powder. For making jewelry and key chains, the kit
contains: three key chains, 12 setting holders in two styles, glue, one
18-inch silver tone necklace chain, four adjustable rings, three pairs
of hanging earring wires, and 12 jump ring connectors.

The rock tumbler kit will be sold in the toy departments in Wal-Mart
stores. The retail packaging for the rock tumbler indicates on the top
right hand corner of the top panel that it's "Fun to Use! Polish rock
and minerals ---start your own collection or make crafts!" The bottom
right of the top panel of the retail package says "Ages 10 & up", and
reads "Caution: electrically operated toy. Not recommended for children
under 10 year of age. As with all electrical products, precaution should
be observed during handling and use to prevent electric shock." The box
also shows pictures of children playing with shiny stones or with
jewelry made with polished stones.

The instructions to the rock tumbler kit again provide a warning
"CAUTION ELECTRIC TOY. Not recommended for children under 10 years of
age. As with all electrical toys, adult supervision is recommended
during use. Contains small parts that could be swallowed." The
instructions also explain how to operate the rock tumbler for polishing
stones and provide jewelry making tips. The rock tumbler kit has a
retail price of \$19.73. There is no statement that the rock tumbler kit
meets the ASTM standards for toys with a motor.

**ISSUE:**

Whether the rock tumbler kit is classified in heading 9503, HTSUS as a
toy put up in a set or in heading 8464, HTSUS as a machine tool for
polishing stone or in heading 8479, HTSUS as a machine and mechanical
appliance not specified or included elsewhere in chapter 84.

**LAW AND ANALYSIS:**

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI). 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 Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the official
interpretation of the Harmonized System at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRIs.

The HTSUS provisions under consideration are as follows:

8464. Machine tools for working stone, ceramics, concrete,

> asbestos-cement or like mineral materials or for cold
>
> working glass:

20. Grinding or polishing machines:

8464.20.50 Other

\* \* \* \*

8479. Machines and mechanical appliance having individual functions, not
      specified or included elsewhere in this chapter; parts thereof:

> Other machines and mechanical appliances

89. Other:

> Other:

8479.89.98 Other

> \* \* \* \*

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

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

Section XVI, Note 1(p), HTSUS, which includes Chapter 84, HTSUS, states
that it does not cover articles of Chapter 95, HTSUS. Accordingly, in
determining the proper classification of the rock tumbler kit, we must
first determine whether it is a toy of heading 9503, HTSUS.

If the rock tumbler kit is a toy of heading 9503, HTSUS, it is not

necessary to consider whether the rock tumbler machine is described in
headings 8464 or 8479 (or whether, as a GRI 3 set, the rock tumbler kit
is classified heading 8464 or 8479).

Although the term \"toy\" is not defined in the HTSUS, the EN\'s to
Chapter 95, HTSUS, provide that Chapter 95 covers toys of all kinds
whether designed for the amusement of children or adults. Also, EN 95.03
provides that heading 9503, HTSUS, covers toys intended essentially for
the amusement of persons (children or adults). EN 95.03 also states
that:

(A) \...Many of the toys of this heading are mechanically or
    electrically operated.

> These include:
>
> ... (17) Educational toys (e.g., toy chemistry, printing, sewing and
> knitting sets).\
> \
> ... 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 EN for subheading 9503.70 states that:

> Subject to substantiated classification in heading 95.03 and for the
> purpose of this subheading:
>
> \(i\) "Sets" are two or more different types of articles (principally
> for amusement), put up in the same packing for retail sale without
> repacking. Simple accessories or objects of minor importance intended
> to facilitate the use of the articles may also be included.

In this case, the rock tumbler kit is capable of polishing stones, so we
must consider if it is an item of limited use of heading 9503, HTSUS.
The Customs Court in [Ideal Toy Corp. v. United States]{.underline}, 78
Cust. Ct. 28, 33, C.D. 4688 (1977), has determined that when amusement
and utility become locked in controversy, the question becomes one of
determining whether the amusement is incidental to the utilitarian
purpose, or whether the utility purpose is incidental to the amusement.
It has been Customs' position that the amusement requirement means that
toys should be designed and used principally for amusement.

In HQ 953215 dated July 14, 1993, Customs considered whether a
children's lockstitch sewing machine was a toy for tariff purposes. We
compared the capabilities of household sewing machines of heading 8452
to the children's lockstitch sewing machine that was being considered.
Based on the size and the operating capability, we determined that the
children's lockstitch sewing machine was a limited use toy classified in
heading 9503, HTSUS. It was noted that the children's lockstitch sewing
machine weighed and cost considerably less than the typical household
sewing machine. We also pointed out that the instructions accompanying
the sample referred to it as a "toy" and stated that it had no
serviceable parts. Moreover, the packing list for the children's
lockstitch sewing machine identified the machine as "plastic toy\[s\]."
The children's sewing machine was depicted in the submitted sales
literature as a "toy", and it had a red-white-blue-color scheme typical
of the bright multicolored look of most toys.

In HQ 956534 dated October 6, 1994, Customs found that toy
walkie-talkies were of such a low value, limited range, and limited
durability relative to real walkie-talkies that the articles were
designed principally for amusement, and thus were classified in
subheading 9503.70.80, HTSUS, the provision for other toys put up in
sets.

In HQ 965321 dated May 9, 2002, we considered whether a "Mr. Snowman
Sno-cone" maker was classified in heading 9503, HTSUS as a toy or as a
hand-operated mechanical appliance used in food preparation of heading
8210, HTSUS. We indicated that an examination of the sample demonstrated
that the product appeared to be of the kind that are of limited use,
food preparation articles, marketed and sold as toys, and which provided
manipulative play and role-play for young children. The articles
included with the set, such as two disposable cups and plastic spoons,
suggested both the limited use and the low-volume sno-cone production of
the article, typical for amusement activities for young children. In
short, this product could not be confused with a \"real\" sno-cone maker
that would typically have an electric motor and be designed to produce
scores of sno-cones in a day. Therefore, we held that the "Mr. Snowman
Sno-Cone" maker was classified in subheading 9503.90, HTSUS as a toy.

Since the rock tumbler kit will also be used for making jewelry, it
appears that it is basically a craft making kit. In several previous
rulings Customs has considered the classification of craft making sets.
HQ 086421 dated May 16, 1990, addressed the classification of the
\"Things You Make\" craft kit which consisted of two unassembled
polyvinyl chloride coin purses, an unassembled polyvinyl chloride comb
case, and an unassembled polyvinyl chloride picture frame. Two plastic
needles and lacing were included so that a child could assemble the
items. We determined that the individual components of the kit were put
up together to provide amusement as toys classified in 9503.70.80,
HTSUS. In HQ 958267 dated May 21, 1996, we determined that a jewelry
making set known as \"Fantastic Crystal Creations" was clearly designed
for children. Although the articles, which a child created, could be
used as jewelry or as decorative items for the home, we determined that
the utility of the finished products was secondary to the play value of
creating the products.

To better understand the product, we have reviewed various web sites
regarding rock tumbling and have had discussions with retailers of rock
tumblers. We were informed that the rock tumbling industry generally
recognizes that there are two basic types of rotating rock tumblers on
the market. The first type of rock tumbler is referred to in the
industry as an educational toy model. This type of rock tumbler would be
sold at toy stores or in toy departments. It generally has a small rotor
power motor, which limits the size of the stones or rocks that can be
polished. In addition, it is usually made of plastic and has a limited
barrel capacity of 1 pound or less. The toy model version of a rock
tumbler tends not to be very durable and typically does not last beyond
a few uses. It cannot be easily repaired when it breaks.

The second type of rock tumbler is known in the industry as a
professional/hobbyist model. This version can process a larger amount of
stones ranging from 1½ pounds to 12 pounds. They have a more powerful
continuous-duty fan motor, a molded rubber or rubber lined barrel with a
quick seal leak-proof closure, and a sturdy metal base. Generally, they
are sold at hobby or rock shops, and in some cases they are sold by
professional jewelry or lapidary equipment suppliers. The retail price
of a hobbyist version of a rock tumbler will start at about seventy
dollars for the most basic model and will rise depending on a number of
factors, including the capacity of the barrel and the size of the motor.

The hobbyist rock tumblers are not marketed as toys. In fact, the
website for the Gem & Mineral Gallery of Newport Oregon states that "you
won't find any plastic constructed rock tumbler here! A rock tumbler is
a machine not a toy..." Another website, www. Luckydan.com, commenting
on the brand of rock tumblers that they sell, indicates that "they are
not toys like you see in Wal-Mart."

While both the subject rock tumbler and a professional/hobbyist rock
tumbler, if given enough time, will produce shiny stones, it is clear
that the subject rock tumbler is far less substantial and sturdy than a
professional/hobbyist version of a rock tumbler. Based on the
information obtained from various websites and retailers knowledgeable
about rock tumblers, the sample rock tumbler under consideration would
be considered by the rock tumbler industry as a toy model and not a
professional/hobbyist model. Although the industry's view of a product
is not automatically determinative on how it should be classified in the
HTSUS, it is a factor that should be given some weight in determining
the proper classification of the article. In this instance, we note that
there are a number of other factors that would seem to further indicate
that the subject rock tumbler is an article of limited use, i.e., an
item classified in heading 9503, HTSUS, as compared to a
professional/hobbyist rock tumbler. Chief among these factors are that
the subject rock tumbler is entirely made of a rather flimsy plastic and
that it has a low power motor. It also has a limited capacity with the
suggested load of stones that it can process being 8 oz. The total unit
weighs only about two pounds. The flimsy plastic construction would seem
to result in the subject rock tumbler having limited durability. More
specifically, the subject rock tumbler's plastic gearing is likely to
wear out fairly quickly. Replacement parts for the rock tumbler probably
could not be easily obtained so that once the rock tumbler does break,
it is unlikely that it would be repaired. In addition, because of the
plastic barrel, when the rock tumbler is being used, it will be highly
noisy as compared to a professional/hobbyist model rock tumbler, where
the barrel is often made of rubber. In addition, the retail cost of the
subject rock tumbler is less than twenty dollars.

Heading 9503 is a \"principal use\" provision, insofar as toys should be
designed and used principally for amusement. See [Minnetonka Brands v.
United States]{.underline}, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Thus
we will consider various factors, which are suggestive but not
dispositive, when determining principal use for amusement including
general physical characteristics. Such factors include the expectation
of the ultimate purchaser, channels of trade, and the environment of
sale (accompanying accessories, manner of advertisement and display). In
viewing these factors, we note that the subject rock tumbler is clearly
marketed as a toy rather than as an item for a hobbyist or for a
professional jeweler. It is sold in the toy department. Numerous places
on the retail packaging indicate that the product is an electrically
operated toy, that it is "safe for kids" and it has an age
recommendation that it should not be used by children under ten years of
age. The instructions also state several times that the rock tumbler is
a toy. In addition, the transformer included with the rock tumbler
provides a warning that the product is an electrically operated toy. The
retail packaging for the kit also shows children playing with polished
stones and items that are contained in the kit.

We believe that there are aspects of play in the rock tumbling activity
which persons and especially children would find amusing. There is an
aspect of play in collecting and selecting of stones to be polished.
Moreover, children may periodically want to see the progress being made
in the polishing of the stones that they have selected. While these
aspects of rock tumbling alone may not qualify it as an amusing
activity, the rock tumbler kit in this case is intended for more than
just polishing stones because it contains various other items that are
used to create jewelry and key chains. The amusement is derived from
manipulating the numerous polished stones with other pieces included in
the kit to create jewelry and other trinkets that children can play with
and wear. See NY A81901 dated April 23, 1996. Similar to other craft
making kits that we have considered previously, the utility of the
finished jewelry is secondary to the play value of creating the
products. Therefore, we conclude that the principal use of the rock
tumbler kit is for amusement, and thus it is provided for in heading
9503, HTSUS. Because the rock tumbler kit is a toy of heading 9503,

HTSUS, it is not provided for in headings 8464 or 8479, HTSUS. See Note
1(p) to Section XVI. The rock tumbler kit is classified in subheading
9503.70.00, HTSUS.

**HOLDING:\
**

The rock tumbler kit is classified in subheading 9503.70.00, HTSUS, the
provision for "Other toys. . .parts and accessories thereof: Other toys,
put up in sets or outfits, and parts and accessories thereof."

Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division