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HQ 959000




March 26, 1997

CLA-2 RR:TC:FC 959000 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4016.92.0000; 8214.10.0000; 9502.10.4000; 9503.49.0020; 9503.90.6000; 9609.10.0000

Port Director of Customs
Port of Los Angeles c/o Chief, Residual Liquidation and Protest Branch 300 S. Ferry Street, Room 1001
Terminal Island, California 90731

RE: Decision on Application for Further Review of Protest No. 2704-94-102408, filed
September 1, 1994, concerning the classification of Poly Pocket Pencil Case Playset articles

Dear Director:

This is a decision on a protest timely filed September 1, 1994, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of Poly Pocket Pencil Case Playset articles entered in February 1994 and liquidated June 3-17, 1994.

FACTS:

New York Ruling Letter (NYRL) 887455, dated July 12, 1993, was issued at the request of the protestant prior to importation. In NYRL 887455, Customs held that the instant merchandise, Poly Pocket Pencil Case Playset articles, item no. 6304-9997, were separately classifiable under the 1993 HTSUSA as follows: Pencil Box: 9503.90.6000, HTSUSA, dutiable at 6.8 percent ad valorem; Eraser: 4016.92.0000, HTSUSA, dutiable at 4.2 percent ad valorem; Dolls: 9502.10.4000, HTSUSA, dutiable at 12 percent ad valorem; Cats: 9503.49.0020, HTSUSA, dutiable at 6.8 percent ad valorem; Sharpener: 8214.10.0000, HTSUSA, dutiable at 0.4 cents each plus 6.1 percent ad valorem; Pencils: 9609.10.0000, HTSUSA, dutiable at 14 cents per gross plus 4.3 percent ad valorem. Nevertheless, the protestant entered the articles claiming that they are classifiable in subheading 9503.70.8000, HTSUSA, as "Other toys put up in sets or outfits, and parts and accessories thereof: Other: other," dutiable at 6.8 per cent ad valorem (1994).

ISSUE:

Whether the Poly Pocket Pencil Case Playset articles are classifiable as sets or as separate components.

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.

It is apparent that these articles, if considered alone, can be classified according to the terms of the headings of the tariff schedule. The eraser is classifiable in heading 4016, HTSUSA. The dolls are classifiable in heading 9502, HTSUSA. The cats are classifiable in heading 9503, HTSUSA. The sharpener is classifiable in heading 8214, HTSUSA. The pencils are classifiable in heading 9609, HTSUSA. The "pencil case" is a composite good consisting of two distinct components: (1) a miniature doll house classifiable in heading 9503, HTSUSA, and (2) a pencil box classifiable in heading 3923, 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, "[t]he 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."

Explanatory Note IX to GRI 3(b) states in pertinent part that, "[f]or 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, "[f]or 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 . . . (emphasis added)."

We note that the dissimilarity of the articles demonstrates that the doll articles and the pencil articles 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 GRI 3 set. As such, they are properly classifiable separately.

The protestant claims that the Poly Pocket Pencil Case Playset articles are properly classified as other toys, put up in sets. We disagree.

Heading 9503, HTSUSA, applies to "other toys," i.e., all toys not specifically provided for in the other headings of Chapter 95. The EN to Chapter 95, HTSUSA, indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." It is Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See, Additional U.S. Rule of Interpretation 1(a), HTSUSA.

The ENs to heading 9503 indicate that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets, and that collections of items separately classifiable in other headings are classified in chapter 95 when put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry sets, sewing sets, etc.). We also look to the recently added "Subheading Explanatory Note to Subheading 9503.70," which states in pertinent part that for the purpose of the subheading:

(I) "Sets" are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included.

Some of the Poly Pocket Pencil Case Playset articles are designed to amuse, i.e., the doll house and the dolls, etc. However, some articles are clearly not designed for amusement. The pencil box and the pencils, etc. are designed primarily for utilitarian purposes. The components do not complement each other. There is no nexus between the use of the toy items and the utilitarian items.

The protestant indicates that school supply items are toys because they are decorated with Poly Pocket toy logos. Customs has held that merely decorating a utilitarian article with a toy logo or motif does not convert the article into a toy. See, HRL 089775, dated January 23, 1992; HRL 951409, dated June 2, 1992; and HRL 956566, dated August 31, 1994. The
protestant also indicates that items such as the pencils are toys because the dolls can be mounted to the pencil tops for imaginative play. We find that the pencils are principally designed for utilitarian purposes, any amusement derived from use of the included toy items with the pencils is secondary or incidental to the use of the pencils. The novelty pencil tops do not convert the pencils into toy items. In sum, the Poly Pocket Pencil Case Playset articles are not classifiable in subheading 9503.70.8000, HTSUSA, as other toys put up in sets. The individual articles are classified separately.

The eraser is classifiable in heading 4016, HTSUSA. The dolls are classifiable in heading 9502, HTSUSA. The cats are classifiable in heading 9503, HTSUSA. The sharpener is classifiable in heading 8214, HTSUSA. The pencils are classifiable in heading 9609, HTSUSA. The "pencil case" is a composite good with parts classifiable in different headings, 9503, HTSUSA, and 3923, HTSUSA. As mandated by GRI 2(b), the proper classification of goods consisting of more than one material or component shall be determined by the application of GRI 3.

As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b). Neither the pencil case nor the doll house component imparts the essential character to these "pencil cases." The "pencil cases" fully incorporate the different components. Each component contributes equivalent bulk, weight, and value. Accordingly, classification is determined by GRI 3(c). As heading 9503, HTSUSA, is the heading which occurs last in numerical order among the headings which would equally merit consideration, the "pencil cases" are classifiable in heading 9503, HTSUSA.

HOLDING:

The articles must be classified separately. The eraser is classifiable in subheading 4016.92.0000, HTSUSA, dutiable at 4.2 percent ad valorem. The dolls are classifiable in subheading 9502.10.4000, HTSUSA, dutiable at 12 percent ad valorem. The cats are classifiable in subheading 9503.49.0020, HTSUSA, dutiable at 6.8 percent ad valorem. The sharpener is classifiable in heading 8214.10.0000, HTSUSA, dutiable at 0.4 cents each plus 6.1 percent ad valorem. The pencils are classifiable in heading 9609.10.0000, HTSUSA, dutiable at 14 cents per gross plus 4.3 percent ad valorem. The "pencil case" is classifiable in subheading 9503.90.6000, HTSUSA, dutiable at 6.8 percent ad valorem.

NYRL 887455 is affirmed.

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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