HQ 0088928 - Decision on Application for Further Review of Protest No. 2904-91-000004, filed January 8, 1991, concerning the classification of a plastic horse figure and accompanying items from China. - United States International Trade Commision Rulings

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HQ 088928

September 6, 1991

CLA-2 CO:R:C:F 088928 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

District Director of Customs
511 N.W. Broadway Federal Bldg
Portland, OR 97209

RE: Decision on Application for Further Review of Protest No. 2904-91-000004, filed January 8, 1991, concerning the classification of a plastic horse figure and accompanying items from China.

Dear Sir:

This is a decision on a protest filed January 8, 1991, against your decision in the classification and liquidation of a plastic horse figure with accompanying items from China.

FACTS:

You classified the subject merchandise under subheading 9503.49.0020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other toys representing animals or non-human creatures, other, other. Protestant claims that the merchandise should be classified under subheading 3926.40.0000, HTSUSA, the provision for statuettes and other ornamental articles.

The subject merchandise consists of a plastic horse figure that is packaged in a blister pack. It is sold with various small items that are designed to be used with it, including a saddle, blanket, bridle, brushes and feed box. The back of the package illustrates other pieces available for use with the figure.

ISSUE:

What is the proper classification of the plastic horse and accompanying items?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

Heading 9503, HTSUSA, provides, in pertinent part, for "[o]ther toys." The Explanatory Notes to Chapter 95 indicate that "[t]his chapter covers toys of all kinds whether designed for the amusement of children or adults." The phrase, "designed for the amusement of" is generally understood to indicate that the use of an article will be a factor when classification as a toy is being considered.

Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that, absent language to the contrary, the following applies:

[A] tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation of goods of that class or kind to which the imported goods belong and the controlling use is the principal use.

Therefore, in order to be classified as a toy, the principal use of the Grand Champion Horse should be for amusement. Customs defines principal use as that use which exceeds each other single use of the article.

Here, it is our determination that the Grand Champion Horse is designed for amusement and that, likewise, the principal use of the horse figure will be as a toy. The plastic construction, lack of fine detail, and overall appearance are not consistent with items that are normally marketed for use as decorative figurines. The accessories that are sold with the figure, i.e., the saddle, blanket, bridle, etc., seem clearly designed to provide additional amusement to the use of the horse. Additionally, the blister card packaging of the item is similar to the method for packaging many toys and is not consistent with the normal packaging of decorative figurines. While it is possible that these horses may on various occasions be used as decorative figurines, such use will not be the principal use.

Having determined that the horse figures are classifiable in heading 9503, HTSUSA, the determination as to the proper subheading of classification as well as to the classification of
the accompanying items must be made.

The horse figures are classified as other toys representing animals or non-human creatures not containing a spring mechanism, under subheading 9503.49.0020, HTSUSA. The items that are sold with the horses merely accessorize these figures and are therefore classifiable as accessories under subheading 9503.49.5000, HTSUSA.

Since it appears that we have a group of items sold together as a set, GRI 3(b) must be consulted. This rule states, in pertinent part:

[G]oods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The Explanatory Notes, which constitute the official interpretation of the HTSUSA at the international level, state in Note X to Rule 3(b) that the phrase "goods put up in sets for retail sale" means goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings...;

(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....

This merchandise satisfies the above criteria for the following reasons:

(1) As noted above, the horse figures and accompanying items are classifiable in different subheadings. According to GRI 6, all rules and notes that are applicable to headings in the HTSUSA are applicable mutatis mutandis to subheadings.

(2) The items are sold together for the purpose of providing horse figures to play with and additional items to enhance the play value by allowing the user the ability to carry out a greater variety of activities with the horse.

(3) The blister pack provides a suitable manner of sale without the need for repacking.

The instant merchandise thus meets all the requirements of a set. Once the existence of a set is established, GRI 3(b) indicates that the goods are to be classified according to the material or component which gives them their essential character. Explanatory Note VIII to GRI 3(b) provides the following guidance for determining essential character:

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.

In the case of the instant merchandise, all of the above factors point to the determination that the horse figure provides the essential character of the set. Of course, it is normally the case that accessories will not provide the essential character of a set. Thus, the set, including the accessories, is classifiable under the subheading that is applicable to the horse figure.

HOLDING:

The merchandise known as Grand Champion Horse, packaged with accompanying items, is classified under subheading 9503.49.0020, HTSUSA, the provision for toys representing animals or non-human creatures and parts and accessories thereof, other, toys not having a spring mechanism, other. The applicable duty rate is 6.8% ad valorem.

The protest should be denied. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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