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HQ 954028


August 17, 1993

CLA-2 CO:R:C:F 954028 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.60; 3401.11.50

Mr. Ernest Ferrante
Kuehne & Nagel, Inc.
10 Exchange Place - 19th Floor
Jersey City, New Jersey 07302

RE: "Floating Soap Dish" Objects (with Batman and Ninja Turtles Themes) Retail Packaged with Bars of Soap; Not Sets

Dear Mr. Ferrante:

This letter is in response to your inquiry of April 28, 1993, on behalf of your client, Tsumura International, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of floating soap dish toys (with "Batman" and "Teenage Mutant Ninja Turtles" themes) and bar soap, imported from China. Sample articles were submitted with your inquiry.

FACTS:

The first sample article consists of an unbreakable, molded, non-toxic vinyl, floating object, which resembles the batmobile. The item measures approximately 7 inches by 3 inches by 1-1/2 inches, and has an open compartment in the rear holding 3 "mini soap" bars standing together on their ends. Each bar of soap measures approximately 2-1/4 inches by 1-1/4 inches by 1/4 inch.

The second sample article also consists of an unbreakable, molded, non-toxic vinyl, floating object, which resembles a camouflaged dinghy, operated by a ninja turtle whose head, upper torso, and arms are visible. An open compartment resembling a motor at the stern, holds 3 "mini soap" bars standing on their
ends, each having the same measurements as the bars of soap noted above. Neither of the floating objects is configured in a manner that would allow it to function as an actual soap dish since the compartments are too small to hold even a small bar of soap placed horizontally.

ISSUES:

1) Whether the floating components of the articles should be classified as soap dishes, or as other toys.

2) Whether the individual components comprising the articles should be classified separately, or as sets.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9503, HTSUSA, applies to "other toys," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 indicates that a toy is an article designed for the amusement of children or adults. The ENs to heading 9503 indicate that certain toys may be capable of a limited "use," but are generally distinguishable from real machines, instruments, etc., by their size and limited capacity. These floating objects are distinct from utilitarian bath products. Their features are designed to amuse children. The features would be less amusing, perhaps unrecognizable (as the batmobile and a turtle-piloted dinghy), if also designed to hold bars of soap as real soap dishes do. Thus, the floating components are properly classified as toys.

The ENs also relate that certain toys are often put up in sets. In this case, the articles each consist of two components, i.e., a toy and bars of soap. Each component is classifiable in a different heading; the toy in heading 9503, HTSUSA, and the soap in heading 3401, HTSUSA, which provides for "Soap...in the form of bars, cakes, molded pieces or shapes...." While the ENs to heading 9503 indicate that toy sets may be comprised of collections of articles, the individual items of which, if presented separately, would be classified in other headings (e.g., toy chemistry and sewing sets), such items must be put up in a form which clearly indicates their use as toys. Although one of the individual components is a toy, putting up the toy and soap for sale does not indicate that the whole article is to be used as a toy. Thus, the article may not be classified pursuant to GRI 1 as toys put up in a set.

Since the articles cannot be classified by reference to GRI 1, we look to GRI 2(b), which in pertinent part states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings are regarded as equally specific when each heading refers to only part of the composite article. Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which states that:

[m]ixtures, composite goods consisting of different materials or made up of different components...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.

Explanatory Note VIII to GRI 3(b) provides the following guidance concerning the essential character determination:

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 discerning whether the criterion used to determine essential character is applicable to the individual components in this case, we look to Explanatory Note IX to GRI 3(b), which states that for composite goods with separable components, the "components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts." Explanatory Note X(b) to GRI 3(b) relates that:

For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:
consist of products or articles put up together to meet a particular need or carry out a specific activity....

The substance of Explanatory Notes VIII, IX, and X(b) to GRI 3(b) indicates that the dissimilarity of the toy and soap components precludes either item from providing the whole article with its essential character. The components, as entered, are not mutually complementary, not adapted to one another, and are not put up to meet a particular need or carry out a specific activity. Therefore, each individual component is separately classifiable.

HOLDING:

The toy and soap components of the "Floating Soap Dish" objects, packaged together for retail sale, are separately classified as follows:

The floating toys (with "Batman" and "Teenage Mutant Ninja Turtles" themes) are properly classified in subheading 9503.90.60, HTSUSA, the provision for "Other toys...and accessories thereof: Other: Other: Other toys (except models), not having a spring mechanism." The general column one duty rate applicable to this merchandise is 6.8 percent ad valorem.

The "mini soap" bars are properly classified in subheading 3401.11.50, HTSUSA, the provision for "Soap...: Soap and organic surface-active products and preparations, in the form of bars, cakes, molded pieces or shapes...: For toilet use (including
medicated products): Other." The general column one duty rate applicable to this merchandise is 1.1 cents per kilogram plus 3.6 percent ad valorem.

Sincerely,

John Durant, Director

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