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HQ 958881




April 17, 1997

CLA-2 RR:TC:FC 958881 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.4000; 9502.99.3000; 9801.00.1098

Port Director of Customs
300 South Ferry Street, Room 1001
Terminal Island, California 90731

RE: Decision on Application for Further Review of Protest No. 2704-94-102662, filed September 26, 1994, concerning the classification of a product called "Locket Surprise Barbie".

Dear Sir:

This is a decision on a protest timely filed September 26, 1994, against your decision in the classification under Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of entries made in March 1994, of a product called "Locket Surprise Barbie".

FACTS:

You classified the product called "Locket Surprise Barbie", item 10963, under the subheadings applicable to the individual components, that is, the doll under subheading 9502.10.4000, HTSUSA, the doll brush under subheading 9502.99.3000, HTSUSA, and the other articles under subheading 9801.00.1098, HTSUSA. The protestant claims that the product should be classified under subheading 9502.10.4000, HTSUSA, as a doll, parts and accessories thereof or in the alternative, as a GRI 3 set, with the doll imparting the essential character.

On June 17, 1996, counsel for the importer met with headquarters personnel to discuss this matter. An additional submission was made on September 10, 1996. This office reviewed a submitted "Locket Surprise Barbie" sample. The product consists of a hard-bodied doll, a doll hairbrush, two heart-shaped make-up lockets and a heart-shaped plastic picture. The heart-shaped make-up lockets and picture fit inside the bodice of the doll.

The protestant made an additional submission, dated October 30, 1996, that described how and where the make-up pods are manufactured. The protestant's submission claims that the make-up is designed for use on the doll as well as on girls.

ISSUE:

Whether the articles contained in the Locket Surprise Barbie package should be classified together as a set under the provision for dolls; or as a doll and doll parts and accessories; or separately.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). 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 GRI's may then be applied. The Explanatory Notes (EN's) 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 GRI's.

It is apparent that these articles if considered alone can be classified according to the terms of the headings of the tariff schedule. The doll is classifiable under heading 9502, HTSUSA, and the make-up lockets under heading 9801, HTSUSA.

In pertinent part, GRI 2(b) states that the 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 of the three separate headings 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, and goods 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.

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.

While the doll is an important component of the "Locket Surprise Barbie" articles, clearly the make-up lockets are also important components. The nature of the lockets and their marketing suggests that they comprise substantial bulk and value, as well as, play value.

Explanatory Note IX to GRI 3(b) states in pertinent part that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only . . . but also those with separable components, provided these components are adapted one to the other and are mutually complementary . . . (emphasis in original).

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 make-up lockets do not complement the other components designed for use with the doll. The make-up is designed to be used by a little girl on herself, not on her doll. In fact, the back of the retail box and the cover of the instructions state, "Makeup not intended for use on dolls." Counsel for the importer dismissed these cautionary instructions as disclaimers to avoid liability for possible staining of the doll with the make-up. Nevertheless, the make-up is principally, if not exclusively, intended to be used by the girl on herself.

The make-up locket articles are incongruous with the other components. The other components complement the doll. In terms of function, they relate to grooming or play with the doll. The substance of Explanatory Notes VII, IX, and X(b) indicates that the doll's dissimilarity from the make-up locket components precludes it from providing the whole article with its essential character. The presence of the make-up lockets demonstrates that the doll and the make-up lockets, 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. Thus, the goods do not comprise a set. See, Headquarters Ruling Letter (HRL) 957707 (June 26, 1995); HRL 953537 (June 16, 1993)

A question remains as to whether the make-up lockets are classifiable as doll parts or doll accessories. In HRL 087704, dated September 27, 1990, this office, with regard to the classification of "accessories" under the HTSUS, stated as follows:

The term "accessory" is not defined in either the tariff schedule or the Explanatory Notes. An accessory is generally an article which is not necessary to enable the goods with which it is used to fulfill their intended function. An accessory must be identifiable as being intended solely or principally for use with a specific article. Accessories are of secondary or subordinate importance, not essential in and of themselves. They must, however, somehow contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation.

In HRL 088579, dated May 23, 1991, this office stated that "a part is generally an article which is an integral, constituent or compound part, without which the article to which it is joined could not function." Originally, for an item to be classified as a "part" of an article, that item must have been "something necessary to the completion of that article . . .[and] an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article." United States v. Willoughby Camera Stores, Inc., 21 CCPA 322, 324, T.D. 46, 51 (1933) (emphasis in original), cert. denied, 292 U.S. 640 (1934); United States v. Antonio Pompeo, 43 CCPA 9,11, C.A.D. 602 (1955). This rule has been somewhat modified so that a device may be considered a "part" of an article even though the device is not necessary to the operation of the article, provided that once the device is installed the article cannot function properly without it. Clipper Belt Lacer Co., Inc. v. United States, 14 C.I.T. 146, 738 F.Supp. 528 (1990), aff'd 923 F.2d 835 (1991).

Here, the make-up lockets do not contribute to the effective use of the doll. They are not an integral components of the doll, nor are they necessary for the use of a doll. While one make-up locket will fit into the chest of a locket surprise doll, the doll and the make-up each have mutually exclusive properties for independent use. Clearly, the make-up lockets are not suitable for use solely or principally with the articles of heading 9502, HTSUS. These make-up lockets are novelty items, not normally associated with dolls, included as a marketing incentive to buy the dolls. The doll are probably bought because the included make-up is like getting an extraneous item for free. The make-up lockets at issue cost very little. Nevertheless, they have independent commercial value. We find that the make-up lockets are not parts or accessories to dolls. They are separately classifiable.

We find that the articles contained in the "Locket Surprise Barbie" package do not comprise a set. Therefore, all the articles must be classified separately. The doll falls into subheading 9502.10.4000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The doll brush falls into subheading 9502.99.3000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Parts and accessories: Other: Other." The protestant's last submission, dated October 30, 1996, indicates that the make-up pods are fully manufactured in the U.S. and exported solely for inclusion into the "Locket Surprise Barbie" package. Consequently, the make-up articles fall into subheading 9801.00.1098, HTSUSA, the provision for "Products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, Other: Other." As such, they qualify for a duty exemption.

HOLDING:

The doll falls into subheading 9502.10.4000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height," dutiable at 12 percent ad valorem (1994). The doll brush falls into subheading 9502.99.3000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Parts and accessories: Other: Other," dutiable at 12 percent ad valorem (1994). The other articles fall into subheading 9801.00.1098, HTSUSA, the provision for "Products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, Other: Other." The applicable rate of duty is free.

You are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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