HQ 084895: Plaster molding and painting kit

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                      HQ 084895


                                     October 12, 1989


CLA-2 CO:R:C:G  084895  HP

CATEGORY:  Classification

TARIFF NO.:  9503.70.8000

Mr. A. Sochaczevski
AMAV Industries Ltd.
2345 Lapierre St.
Lasalle, Quebec
CANADA HBN 1B7

RE:  Plaster molding and painting kit

Dear Mr. Sochaczevski:

     This is in reply to your letter of June 16, 1989, concerning
 the tariff classification
of a Cast and Color kit, your product number 4531, under the
Harmonized Tariff
Schedule of the United States Annotated (HTSUSA).

FACTS:

     The merchandise at issue consists of a kit used by children
to produce plaster
novelties.  It includes a clear plastic mold with 12
distinctively shaped cavities, plaster
to be mixed with water, kneaded, and then poured into the mold
cavities. a set of
mixed paints and an artist brush for coloring the novelties after
 the plaster dries, and
various small items for decorating some of the painted plaster
novelties.

     The box containing the aforementioned components displays a
picture with the
finished products, and recommends ages "8 years and up."  From
this, we assume that
the instant merchandise is principally designed for children.
The container also states
that the paintbrush, magnetic strip, paints, and plastic tube are
 from the U.S.A., the
metal pieces are from Hong Kong, with the "balance of [the]
components [of] Canadian
origin."  The latter includes the plastic mold, plaster, and
thermometer.

ISSUE:

     Whether the instant merchandise is a toy under HTSUSA?
LAW AND ANALYSIS:

     Subheading 9503.70, HTSUSA, provides for toys, put up in
sets or outfits, and parts
and accessories thereof.

     The Explanatory Notes (EN) to the HTSUSA constitute the
official interpretation of
the tariff at the international level.  EN (A) to this heading
states that:

          Collections of articles, the individual items
        of which if presented
        separately would be classified in other headings
        of 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).

     EN 9503 goes on to state, in pertinent part:

          This heading also excludes:

        (a)    Paints put up for children's use (heading
               32.13).

        (b)    Modelling pastes put up for children's
               amusement (heading 34.07).

        (c)    Children's picture, drawing or colouring
               books of heading 49.03.

                                   *    *    *

        (h)    Crayons and pastels for children's use, of
                heading 96.09.

     It is clear from the above text that, imported separately,
several components of the
"Cast & Color" are classifiable elsewhere in the HTSUSA.
Therefore, we must determine
whether the "Cast & Color" set is put up in a form clearly
indicating its use as a toy.

     Although the exclusionary language of EN 9503, supra, might
lend one to believe
that art sets or kits are not within the scope of Chapter 95,
HTSUSA, the exclusions
are merely statements that these individual articles are more
specifically provided for
elsewhere in the Nomenclature.  The instant merchandise does not
use a "modelling
paste," and the role of the paints and the painting activity is
similar to that in model
airplane, boat, etc., kits.  When combined in a "Cast & Color"
set, this set is a toy in
the same manner as "instructional" chemistry and sewing kits are
classified as toys.

     It has been argued that since the function of the "Cast &
Color" is to create
decorative/functional items, classification as a toy is precluded
.  However, certain
articles are classifiable as toys, e.g., electric irons, sewing
machines, musical instru
ments, etc., even though they may be capable of a function
distinct from the amusement
of children and adults.  With respect to the instant merchandise,
 the finished products
displayed on the box are clearly meant to be made by children for
 their use; bears,
kitties, unicorns, all with smiling faces, and other similar
items.  Any other use, i.e., as
a picture frame, is clearly secondary to the principal use of the
 12 projects included
therein: the amusement of children.
HOLDING:

     As a result of the foregoing, the instant merchandise is
classified under subheading
9503.70.8000, HTSUSA, as other toys; reduced-size ("scale")
models and similar recrea
tional models, working or not; puzzles of all kinds; and
accessories thereof, other toys,
put up in sets or outfits, and parts and accessories thereof,
other, other.

     Articles which meet the definition of "goods originating in
the territory of Canada"
are subject to reduced rates of duty under the United States-
Canada Free Trade
Agreement Implementation Act of 1988 ("FTA").  General Note 3(c)(
vii), HTSUSA.  Goods
are considered "originating in the territory of Canada" if:

                                   *    *    *

        (2)    they have been transformed in the
               territory of Canada and/or the
               United States, so as to be subject--

            (I)    to a change in the tariff
                   classification in Canada as
                   described in the rules of
                   subdivision (c)(vii)(R) ....

Id. at 3(c)(vii)(B).

     Subdivision (c)(vii)(R), supra, provides, in pertinent part,
 that for Section XX,
HTSUSA (Chapters 94 through 96), "[a] change from one chapter to
another ..." is a
sufficient transformation under the FTA for the instant
merchandise to be considered as
originating in Canada.  As we stated above, when imported
separately, whether into
Canada or the United States, several components of the "Cast &
Color" are classifiable
in different chapters within the HTSUSA.  It would therefore
appear that the instant
merchandise is considered a product of Canada for classification
purposes.

     General Note 3(c)(vii)(C), HTSUSA, is inapplicable here,
since the components of
the "Cast & Color" set are not merely packaged in Canada.  Rather
, several of the key
components are made in Canada.  See HRL 084935 of August 23, 1989
.  Consequently, if
all other applicable conditions under the FTA are met, the "Cast
& Color" set is eligible
for a reduced duty rate of 6.1 percent ad valorem; otherwise, the
 General rate of duty
is 6.8 percent ad valorem.


                                   Sincerely,


                                   John Durant, Director
                                   Commercial Rulings Division