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HQ 959858




December 9, 1998

CLA-2 RR:CR:GC 959858 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.0030

Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731

RE: Application for Further Review of Protest No.2704-96-100566; "Pocahontas Beauty Basket"

Dear Port Director:

The following is our response to the application for further review of protest 2704-96-100566 concerning your classification decision regarding an article described as a "Pocahontas Beauty Basket" under the Harmonized Tariff Schedule of the United States (HTS). Protestant's submission indicates that descriptive literature as well as a sample of the subject article were submitted for our review.

FACTS:

The subject article is described as a "Pocahontas Beauty Basket." It consists of an orange and blue plastic case, pink and green face paint with applicator, a plastic choker, arm cuff , bracelet and hair comb. The basket has a woven pattern molded into it. On its outside center it has a blue circle with a molded Pocahontas form. On the inside, the blue circle has a mirror. The face paint is housed in a plastic purple tube which has molded into it scenes from the Disney movie "Pocahontas." The face paint is applied by a plastic pink sparkley "magic wand" applicator. All of the jewelry as well as the comb have interchangeable sparkley plastic "shells" as accessories.

Protestant entered the beauty case under subheading 4202.12.2020, HTS, the jewelry with shell applications under subheading 7117.90.5500, HTS, the plastic hair comb under subheading 9615.11.1000, HTS, and the face paints under subheading 9801.00.1098, HTS. Protestant asserts that all the articles except for the face paints are classifiable under subheading 9503.70.0030, HTS. Protestant asserts that the face paints are classifiable under subheading 9801.00.1098, HTS.

The entries, made in August and September of 1995, were liquidated on November 24, 1995, December 1, 1995, December 8, 1995, and December 15, 1995. A protest was timely filed for all entries on February 21, 1996. The headings and subheadings under consideration are as follows:

4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper

7117 Imitation jewelry

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

9615 Combs, hair-slides and the like; hairpins, curling pins, curling grips, hair-curlers and the like, other than those of heading 8516, and parts thereof

9801.00.10 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

ISSUE:

Whether the Pocahontas Beauty Basket is classifiable as a toy set, GRI 3 set or whether the components are classifiable separately.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTS. Most imported 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. 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 HTS by offering guidance in understanding the scope of the headings and GRIs.

Although the term "toy," in general, is not specifically defined in the tariff, the ENs to Chapter 95, HTS, indicate that, "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." It has been 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), HTS.

The present article, "Pocahontas Beauty Basket," contains several distinct components which, when viewed as a whole, may render the article classifiable as a toy. The ENs to 9503 provide that, "collections 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)."

In order to achieve clarity and consistency in the classification of toy sets and outfits, the Harmonized System Committee of the Customs Cooperation Council amended the EN at its 14th Session by providing the following subheading 9503.70 Explanatory Note:

Subject to substantiated classification in heading 95.03 and for the purpose of this 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.
ii) "Outfits" are two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or profession.

Doc. 38.960, Annex G/12 and L/19 (HSC/14/Nov. 94).

While not legally binding, we find this EN provides useful guidance. It indicates that the potential set/outfit, in its totality, is to be considered when determining whether it is used principally for amusement. The manner in which the merchandise is put up together, or packaged, for retail sale as well as the marketing, advertising, and channels of trade of the potential set as a whole is probative of its classification as a toy set of subheading 9503.70, HTS. Further, when considering if a particular article within the potential set is used principally for amusement, emphasis must be placed on whether that article amuses when viewed in its context within the entire retail packed set. Hence, a "disparate" article of major importance, demonstrating a minor, if any, connection to the set in its totality, would cause the merchandise to fail as a set of this subheading.

For a further discussion on subheading 9503.70, HTS, see: Headquarters Ruling Letters (HRL) 950700 dated August 25, 1993, which classified "Minne'n Me Looking Pretty Sets"; 953470 dated July 9, 1993, which classified a "Light-Up Dream House"; 954559 dated February 16, 1994, which classified a "Pretty Bride Dress-Up Set"; 954690 dated September 5, 1995, which classified a "Petite Miss Fashion Model Set"; 956387 dated October 3, 1995, which classified a "Bag of Bath Toys"; 956974 dated November 23, 1994, which classified a "Ball Pit Mountain"; 957829 dated July 3, 1996, which classified the "Fantastic Fingernails Nail Decorating Set"; and 958345 dated March 11, 1996, which classified a "Pocket Comics Set."

In applying the relevant EN, consistent with the language provided in the HTS, at both the heading level providing for "other toys" and at the subheading level providing for "other toys put up in sets or outfits," it is our position that the instant merchandise is classifiable within subheading 9503.70.

In this case, the manner in which the merchandise, in its totality, is retail packed indicates that it is principally used for amusement. The packing describes and presents the merchandise as a "beauty basket." In particular, the combination includes components which are all intended to facilitate the child-consumer's role play as the character "Pocahontas" from the Disney movie or to "dress-up."

The advertising on the package as well as the submitted marketing focus group report confirms the use of the "Beauty Basket" as a toy. In this regard, the package states:

Pocahontas and her friends walked in beauty. They adorned themselves with treasures from nature like shells from the sea. For special times, they painted their faces with colors from the earth. Now you can be as beautiful as Pocahontas. All the treasures and face paint you need are inside the Basket of Beauty.

Wear a tattoo' armband on your arm and a shell' necklace just like Pocahontas, inspired by Disney's animated film, Pocahontas.

Paint yourself like Pocahontas. It's easy with the color wand. Water-based and non-toxic paint.

It's fun to snap mix n match glitter-shells onto necklace, comb or bracelet.

Everything fits in the carry-along basket!

Additionally, a marketing Focus Group Report submitted by counsel demonstrates that the merchandise, retail packed in this particular manner, is considered a toy by the ultimate consumer. The report states, in pertinent part, that:

Mothers were very positive about the Pocahontas Jewelry Basket on account of their perception of its uniqueness and play value. Specifically, most moms very much liked the face paint because of the creativity and fun it allows, and its appropriateness to the Indian theme. Mothers also felt that the Indian theme differentiates this article from competitive vanities.

In short, the evidence presented indicates that the "Pocahontas Beauty Basket" will be principally used as a role playing device to "pretend" one is an Indian princess or Pocahontas herself. As such it is classifiable under subheading 9503.70.0030, HTS, which provides for "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof: Other." As the article is classifiable as a set, there is no need to classify the face paint under heading 9801, HTS.

HOLDING:

The "Pocahontas Beauty Basket is classifiable under subheading 9503.70.0030, HTS, which provides for "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof: Other." The 1995 column one rate was free. The protest should be ALLOWED in full.

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 entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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