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HQ 959550




March 16, 1998

CLA-2 RR:CR:GC 959550 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.80 (9503.70.00)

Port Director of Customs c/o Chief, Residual Liquidation and Protest Branch 300 South Ferry Street
Terminal Island, California 90731

RE: Protest 2704-94-102815, "Barbie 100 Piece Gift Set"

Dear Port Director:

This is our decision on protest 2704-94-102815, timely filed October 26, 1994, against your decision in the classification of a "Barbie 100 Piece Gift Set" under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision, we have also considered a supplemental submission dated October 27, 1997.

FACTS:

The "Barbie 100 Piece Gift Set" (item 65293) consists of what appears to be approximately 100 accessories for a "Barbie" doll, such as, doll clothing and miscellaneous plastic items, such as, shoes, a comb, a brush, a cat, etc., intended for use in playing with a "Barbie" doll. These articles are accompanied by a durable pink plastic carry bag that measures approximately 13 inches by 11 inches by one inch. The carry bag features two handle holes of reinforced plastic, the name "Barbie," and a colorful depiction of "Barbie" carrying several shopping bags. The "Barbie 100 Piece Gift Set" is imported packaged for retail sale and is marketed to girls ages five and up. A sample was submitted for our review.

You classified the individual components of the "Barbie 100 Piece Gift Set" separately in the following provisions:

The carry bag, in subheading 4202.22.1500, HTSUS, as a handbag with outer surface or sheeting of plastic

The doll clothing and accessories, in subheading 9502.91.0000, HTSUS, as parts and accessories of dolls representing only human beings, garments and accessories thereof, footwear and headgear

The remaining items, in subheading 9503.90.6000, HTSUS, as other toys.

In 1994, all of the above classifications were free of duty, except for the carry bag (subheading 4202.22.1500) which was dutiable at 20 percent ad valorem.

The protestant claims that the merchandise should be classified under subheading 9503.70.8000, HTSUS, the provision for other toys, put up in sets or, alternatively, by application of GRI 3(b), in subheading 9502.91.0000, HTSUS, the provision for doll clothing or, alternatively, by application of GRI 3(c), in subheading 9503.90.6000, HTSUS, the provision for other toys.

Except as otherwise noted, all of the HTSUS provisions discussed herein are those which were in effect at the time the merchandise covered by the referenced protest was entered (1994).

ISSUE:

Whether the items comprising the "Barbie 100 Piece Gift Set" are classifiable as a set or separately.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the HTSUS 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 relevant subheadings are as follows:

4202.22.1500 handbags with outer surface or sheeting of plastic

9502.91.0000 Parts and accessories of dolls representing only human beings, garments and accessories thereof, footwear and headgear

9503.90.6000 Other toys

Are the Articles At Issue Classifiable as Toys?

The term "toy" is not defined in the HTSUS. However, in understanding the language of the HTSUS, the Explanatory Notes (EN's) of the Harmonized Commodity Description and Coding System may be utilized. The EN's, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

EN's to Chapter 95 state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition for "toys," we have interpreted the just-quoted passage from the EN's as equating "toys" with articles designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use. This view has been articulated by this Office in a number of prior rulings, including HRL 950700 of August 23, 1993.

The EN's for heading 95.03 provide, in pertinent part, that:

[c]ollections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).

With respect to toy sets, the EN's for subheading 9503.70 provide, in pertinent part, that:

"[s]ets" 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.

It is Customs position that "toys, put up in sets or outfits" (subheading 9503.70, HTSUS) is an eo nomine provision denoting a clearly identifiable class or kind of goods. Consequently, goods may be classified in subheading 9503.70 pursuant to GRI 1, and recourse to the other GRI's, particularly the provisions of GRI 3 relating to sets, is unnecessary. See, e.g., HQ 086407 of March 22, 1990, HQ 086330 of May 14, 1990, and HQ 950700. Such sets typically contain complementary articles intended for use together, rather than individually, to provide amusement. However, there is no requirement that the component of the set only be capable of use together, and the ability of one or more of the components to be used individually does not disqualify classification as a toy set. It is sufficient that the components of the toy set possess a clear nexus which contemplates a use together to amuse.

Although we have previously noted in connection with our analysis of toy sets that no single component should predominate over the other set components (see, e.g., HQ 950700), further review of the HTS and the EN's disclose no basis for imposing such a rule. Inasmuch as any finding of a component's predominance would have no impact on a finding that the components together constitute a collection of articles designed and principally used for amusement, we have determined this rule to be inappropriate.

The "Barbie 100 Piece Gift Set" combines various articles, including a carry bag, doll clothing and accessories, and various other scale-size items that are shown on the retail package as being arranged on what appear to be store shelves (in addition to the layout of the items on the shelves, there are numerous examples of several of the items, suggesting a sale environment). Although no specific activity theme is stated on the retail package, the articles appear to be intended for use together in a play activity that involves "Barbie" going shopping, either by herself or with other "Barbie" friends, to buy articles for herself or as gifts for her "Barbie" friends. In this connection, we view the scale-size cat figure (solid pink in color in the sample we examined) as representing not a real cat (e.g., a pet), but a sculpture of a cat (or a stuffed cat) that might be purchased by "Barbie." Together, all of the articles appear to be intended to occupy the user in a pleasant or enjoyable (i.e., amusing) way, allowing the user to employ imagination and creativity in selecting items for "Barbie" to buy. Accordingly, the articles meet the requirements for classification as toy sets.

The bright pink plastic carry bag, of relatively substantial construction, depicts a Barbie doll carrying several shopping bags. Pretending to buy the doll clothing and accessories, putting them in the bag, carrying them around, and unpacking them, is all part of the play activity of shopping for and with "Barbie." In this instance, the carry bag serves as a logical adjunct to the
other accessories, both as a shopping bag to emulate "Barbie" carrying her purchases home from the store, as pictured on the bag, and as a storage bag for the clothing and other accessory items of the set when not in use.

HOLDING:

The "Barbie 100 Piece Gift Set" is classified in subheading 9503.70.8000, HTSUS, the provision for "Other toys . . . and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof: Other: Other." The applicable rate of duty is 6.8 percent ad valorem (1994). The applicable subheading is now 9503.70.00, with a general 1998 column one duty rate of free.

You are instructed to allow the protest in full. A copy of this decision should be attached to the Customs 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
Commercial Rulings Division

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