November 16, 2005 CBP Bulletin Notices on Plastic Rubbing Templates and Silymarin (Milk Thistle) and Leucoanthocyanin

With respect to the proposed modifications and revocations, CBP states that it is also proposing to revoke any treatment it has previously accorded to substantially identical transactions that are contrary to its position in these notices. With respect to the withdrawal, CBP states that it is withdrawing its revocation of any treatment previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed rulings, or any party involved with a substantially identical transaction, should advise CBP by December 16, 2005, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

In addition, CBP states that the notices concerning the proposed modifications and revocations cover any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Modification and Revocation of Five Classification Rulings

Plastic rubbing templates. At issue are various types of plastic rubbing templates with raised designs that are placed under paper in frames for creating designs with crayons or pencils. The activity performed with the rubbing template is similar to that performed with a stencil or by tracing. It involves following a design pattern to create a design which can be then colored. The plastic templates are used to make rubbings depicting animal tracks, various scenic designs, fashion designs, etc. (see individual rulings for specific article descriptions).

The names of these articles include "Fashion Maker," "Cyborg Body Works," "Fashion Designer Portfolio Drawing Set," "Polly Pocket Crayon By Number Activity Caddy," etc.

CBP is proposing to issue HQ 967796 and HQ 967799 in order to modify NY G88117 and NY 811162 respectively, in order to classify subject merchandise under HTS 3926.90.9880, which provides for "other articles of plastics and articles of other materials of headings 3901 to 3914: Other," rather than under 9503.90.00, which provides for "other toys."

CBP is also proposing to issue HQ 967800, HQ 967797, and HQ 967798 in order to revoke HQ 952413, NY J88507, and NY 885655 respectively, in order to classify subject merchandise under HTS 3926.90.9880, which provides for "other articles of plastics and articles of other materials of headings 3901 to 3914: Other," rather than under 9503.90.6000 (1993) (now 9503.90.00), 9503.70.0000, and 9503.70.8000 (1993) (now 9503.70.0000), which provide for "other toys."

According to the General Explanatory Notes (ENs), HTS Chapter 95 covers toys of all kinds whether designed for the amusement of children or adults. CBP states that it has been its position that this requirement means toys should be designed and principally used for amusement.

In addition, CBP has never considered tools for writing, coloring, drawing or painting to be toys, as these tools are not designed to amuse, and has issued a number of rulings where it classified stencils, which are similar to rubbing templates in the activity performed, in HTS 9017 as drawing instruments, rather than as toys of HTS Chapter 95.

It is now CBP's view that the subject rubbing templates should similarly be classified outside of HTS Chapter 95.

Although an earlier CBP ruling found that the definitions of stencils and templates were similar, CBP is proposing that the plastic rubbing templates not be classified in HTS 9017, as they do not fit the template definition in the earlier CBP ruling, which is of a type that is similar to a stencil (i.e., the plastic rubbing templates are not "a pattern, mold, or the like, usually consisting of a thin plate of wood or metal, serving as a gauge or guide in mechanical work"). Instead, CBP is proposing that the subject rubbing templates be classified in HTS 3926 as other articles of plastic, etc.

proposed: HTS 3926.90.9880, 5.3%; current: 9503.90.00 and 9503.70.0000, duty-free.

Withdrawal of a Revocation and Modification of Two Classification Rulings

Silymarin (milk thistle) and leucoanthocyanin. At issue are (i) silymarin, which is a yellow powder that contains 80% mixture of isomers of silymarin (silybin, silicristin and silidianin), and (ii) leucoanthocyanin, which is a brownish powder consisting of 90-95% oligomeric proanthocyanidin (OPC).

CBP states that a notice was published in the September 28, 2005 CBP Bulletinrevoking HQ 964338 and modifying NY 814027, and revoking any treatment accorded to substantially identical merchandise. That notice indicated that no comments had been received in response to the proposed modification and revocation published in the June 22, 2005 CBP Bulletin.

However, according to CBP, one comment was timely received but it was not considered because it did not reach the CBP Office of Regulations and Rulings. Therefore, CBP is withdrawing the revocation and modification in order to consider these timely filed comments.

See ITT's Online Archives or 10/12/05 news, 05101245, for BP summary of revocation and modification rulings on two classification rulings.

November 16, 2005 CBP Bulletin (Vol. 39, No. 47) available athttp://www.customs.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2005/vol39_11162005_no47/