HQ 0951082 - Internal Advice Request 59/91; classification of three styles of "Barbie" accessory cases; non-rigid plastic construction with handle; internal drawers, shelves, hangers and hanger rods; EN to heading 4202; Legal and Explanatory Notes to Chapter 95; the use of non-rigid plastic combined with the internal design of these articles precludes classification under 4202, HTSUSA; 9503, HTSUSA - United States International Trade Commision Rulings

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HQ 951082

May 21, 1992

CLA-2 CO:R:C:T 951082

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.6000

Area District Director
U.S. Customs Service
New York Seaport
6 World Trade Center
New York, N.Y. 10048-0945

RE: Internal Advice Request 59/91; classification of three styles of "Barbie" accessory cases; non-rigid plastic construction with handle; internal drawers, shelves, hangers and hanger rods; EN to heading 4202; Legal and Explanatory Notes to Chapter 95; the use of non-rigid plastic combined with the internal design of these articles precludes classification under 4202, HTSUSA; 9503, HTSUSA

Dear Sir:

This ruling is in response to a request for internal advice initiated by Siegel, Mandell & Davidson, P.C. on behalf of their client, Tara Toy Corporation. At issue is the proper classification of three styles of "Barbie" accessory cases. A sample of each style was submitted to this office for examination.

FACTS:

Three different styles of "Barbie" accessory cases were submitted to this office. Each is constructed of a decorative non-rigid vinyl plastic body secured to a rigid plastic frame. Individual descriptions of the samples follow:

1) Barbie Deluxe Storage Trunk - this article measures approximately 12 inches in height by 9 inches in width. The article has a plastic handle on the top and a single turn latch closure on the side. Two small removable drawers are located inside the article. One side of the interior has a 10 inch long closet rod for hanging "Barbie" clothing. The interior opposite side has two open rectangular compartments, approximately 11 inches high, which store two full-length size "Barbie" dolls.

The article is affixed with a hangtag which reads "BARBIE DELUXE TRUNK. The storage trunk with two drawers holds two BARBIE dolls outfits & accessories."

2) Barbie Accessory Case - this article measures approximately 9 inches high by 5 inches wide. It is cylindrical in shape with a single plastic handle on the top and two snap closures down the side. The interior of the article features two small removable drawers and two shelves. The affixed hangtag reads "BARBIE ACCESSORY CASE. Shelves and drawers provide ample storage for BARBIE accessories."

3) Barbie Revolving Storage Closet - this article measures approximately 12 inches high by 9 inches wide. It is oval shaped with a single plastic handle on the top and features a revolving clothes closet upon which clothes can be hung on miniature hangers. A circular knob located at the top turns the clothes closet in order to make the desired outfit more accessible to the child. The affixed hangtag reads "BARBIE ROTATING CLOTHES CLOSET. Revolving storage closet for BARBIE outfits and & accessories."

Counsel has submitted a sworn affidavit, referenced Exhibit A, of Mr. Donald Pearlstein, developer and designer of the articles at issue.

ISSUE:

What is the proper classification of the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's.

Three headings potentially govern classification of the subject merchandise: heading 3924, HTSUSA, which provides for, in pertinent part, other household articles of plastic, heading 4202, HTSUSA, which provides for various carrying cases and heading 9503, HTSUSA, which provides for, in part, toy accessories.

Heading, 3924, HTSUSA, provides for tableware, kitchenware and other household articles and toilet articles of plastics.

The Explanatory Notes (EN) to this heading provide exemplars as to what items are properly classifiable within this provision, specifically: "ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, luncheon boxes, curtains, drapes, table covers and fitted furniture dustcovers (slipovers)." The common denominator among these articles is that all are of a utilitarian nature and all are commonly found in most households.

The "Barbie" accessory cases at issue are clearly not of the same type of article as those items classifiable in heading 3924, HTSUSA, listed above. The accessory cases are not commonly found in most households nor are they designed to serve a strictly utilitarian function. While it is true that the articles at issue are functional inasmuch as they store and organize toys and toy accessories, they are not akin to the enumerated examples in that they are not mere household articles. The subject merchandise is designed to provide a source of amusement and encourage interaction from a child; therefore classification as a household article of plastic is not appropriate.

Heading 4202, HTSUSA, provides for a wide array of carrying cases. It has long been Customs' policy that for an article to be classifiable under heading 4202, HTSUSA, the article must be specifically cited as an exemplar or be ejusdem generis with the items listed. See Headquarters Ruling Letter (HRL) 087169, dated November 8, 1990. The articles expressly listed in heading 4202, HTSUSA, include trunks, suitcases, vanity-cases, brief cases, school satchels and cases specially fitted to contain a particular article. The heading also includes various traveling bags, toilet bags, rucksacks, handbags, shopping bags, wallets, map cases, cigarette cases, tool bags, sport bags, bottle-cases, jewelry boxes, powder-boxes, cutlery cases and similar containers.

The subject merchandise is not a specifically enumerated exemplar of heading 4202, HTSUSA. The question next arises as to whether the articles at issue are similar to the enumerated articles so as to warrant classification under this heading. The types of carrying cases enumerated in heading 4202, HTSUSA, are diverse in function and appearance, but share in common the ability to withstand the rigors for which they were designed and to be capable of being used for transporting various articles on a repeated basis. While it is apparent that the subject merchandise is sturdy enough to be used as stationary storage places for "Barbie" accessories, and to be used as closets, bureaus and wardrobes by children playing with the items, we question the durability of the non-rigid plastic shell of these articles for use in frequent transport. The submitted samples appear to be fragile and not likely to withstand the rigors of
frequent travel without sustaining damage. Moreover, the interior design of these articles does not lend itself to the transportation of small "Barbie" accessories which are placed on shelves, in drawers, and on hangers which hang from straight and rotating closet rods. Travel with these accessory-filled articles would result in the contents falling off hangers and sliding off shelves and out of drawers. This is not to say that the subject merchandise is incapable of transporting goods, as obviously it is by virtue of the handles placed on top of each sample. Rather, transportation of small toy accessories in these articles is impractical and the subject merchandise's ability to transport the "Barbie" accessories is secondary to its primary function of providing a stationary storage place for these items and possessing design features which allow a child to play with the articles.

The fact that these articles were not designed to function primarily as carrying cases is also evidenced by the designer's sworn affidavit referenced in counsel's submission as Exhibit A. In his sworn statement, Mr. Donald Pearlstein attests that "by reason of design, construction and marketing, these articles are ... primarily used to organize and neatly store Barbie dolls and Barbie doll clothing and ... accessories." They are also designed to encourage play by representing miniature steamer trunks, closets and wardrobes which contain working drawers, shelves, revolving clothing hangers, etc... . Mr. Pearlstein further stated in his affidavit that "[t]he storage cases are specifically designed to be played with, manipulated and integrated during play with Barbie dolls, Barbie doll clothing and other Barbie doll accessories and are generally sold at retail in doll and doll accessory departments next to the Barbie dolls."

It is this office's opinion that the articles at issue are not primarily designed to transport goods: the walls of these articles are constructed from non-rigid plastic that does not hold up well under the rigors of travel, and the interior designs of these cases do not lend themselves to securing small "Barbie" accessories and keeping them organized while traveling. We note that construction from non-rigid plastic alone will not preclude classification as a carrying case under heading 4202, HTSUSA, but this fact combined with the articles' poor design for the transport of toy accessories will, in this instance, preclude classification as a carrying case. The primary function of these articles is not to transport goods, but rather to store toys and toy accessories and to provide a source of amusement for a child. Accordingly, classification is not proper under heading 4202, HTSUSA.

Heading 9503, HTSUSA, provides for "other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof." The Explanatory Notes to Chapter 95 state that "... this Chapter also covers identifiable parts and accessories of articles of this Chapter which are suitable for use solely or principally therewith, and provided they are not articles excluded by Note 1 to this Chapter." Note 1(d) to this Chapter excludes "[s]ports bags or other containers of heading No. 42.02 ... ." As set forth supra, the subject merchandise is not classifiable under heading 4202, HTSUSA, so there is no automatic preclusion to classification in Chapter 95.

The articles at issue are essentially cases designed, marketed and sold to store and organize toys and toy accessories and to provide a "Barbie" closet and wardrobe which allows a child to engage in fantasy play with the items. This is confirmed by the designer's intent, as set forth in his sworn affidavit, as well as by the fact that these articles are marketed as "Barbie" accessories and sold in toy departments with other "Barbie" toys and accessories. A "Barbie" doll is a toy and the articles at issue are accessories solely designed to be used in conjunction with "Barbie" dolls as storage places and organizers and to provide amusement for a child. As such, the subject merchandise is properly classifiable as an "other toy" under heading 9503, HTSUSA. See New York Ruling Letter (NYRL) 855780, dated September 21, 1990 which classified a Cabbage Patch Doll carrying case under heading 9503, HTSUSA.

HOLDING:

The subject merchandise is classifiable under subheading 9503.90.6000, HTSUSA, which provides for other toys; reduced- size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof: other: other toys (except models), not having a spring mechanism ..., dutiable at a rate of 6.8% ad valorem.

Sincerely,

John Durant, Director

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