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HQ 960465




June 23, 1998

CLA-2 RR:CR:GC 960465 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.00

Ms. Cindy Hazlett, CHB
International Trade and Logistics
Applause Inc.
6101 Variel Avenue
PO Box 4183
Woodland, Hills, CA 91365-4183

RE: "Snoopy" Play Set; NYRL B83149

Dear Ms. Hazlett:

On April 29, 1997, you submitted a request for reconsideration of New York Ruling Letter (NYRL) B83149, which, based on a series of designs submitted to Customs, classified a plush dog under heading 9503, of the Harmonized Tariff Schedule of the United States (HTSUS) as a stuffed toy and a plastic coated doghouse-shaped carrying case in which the plush dog will be carried under heading 4202, HTSUS, as a handbag. A sample of an article with the exact same construction but with a "101 Dalmatians" theme, was submitted for our review.

Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186), notice of the proposed revocation of NYRL B83149 was published, on May 13, 1998, in the Customs Bulletin, Volume 32, Number 19. No comments were received in response to the notice.

FACTS:

The merchandise is identified as a "Snoopy Play Set." It will consist of a "Snoopy" plush dog packaged together with a seven-inch high plastic carrying case shaped and decorated like "Snoopy's" doghouse. The case will be constructed of padded paperboard coated with a vinyl material which will be die-cut and heat-sealed. The material on the front of the case will have "Snoopy's" name over a drawn entryway with a drawing of "Snoopy" sitting in front of the entryway. On one of the longer sides of the case, a dog dish and the character "Woodstock" will be drawn. The "roof" of the doghouse will lift open from one side so that the plush dog may be placed inside. When closed, the "roof" will be secured to the side of the structure by a Velcro-like material. Finally the "roof" will have a vinyl link strap for carrying. The carrying case is being designed for the carrying of the plush toy. Both articles will be imported together and sold as a set. Neither will be sold separately.

ISSUE:

Whether the articles comprising the "Snoopy Play Set" are classifiable as a toy set for tariff purposes.

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 subheadings under consideration are as follows:

4202.22.15 Handbags with outer surface or sheeting of plastic

9503.41.10 Other toys representing animals or non-human creatures, stuffed toys

9503.70 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

Note 1(l) of Chapter 42, HTSUS, states that: "[t]his chapter does not cover:...[a]rticles of chapter 95 (for example, toys, games, sports equipment.)" Therefore, we must first determine whether the "Snoopy Play Set" is classifiable as a "toy set" for tariff purposes. If so, it is excluded from classification in heading 4202.

The term "toy" is not defined in the HTSUS. However, in understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, 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).

The ENs 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 of "toys," we have interpreted the just-quoted passage from the ENs 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.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

The general physical characteristics of the"Snoopy Play Set," mainly the doghouse shape of the handbag together with both of the components' "Snoopy" theme, indicates that the articles will be principally used as a toy. Moreover, although no specific activity theme has been stated, it appears that the articles will be used in the same manner as toys because it appears that the articles are intended for use in a play activity that involves "Snoopy" being carried around and placed in and out of his "doghouse." Pretending that the carrying case is either a doghouse or a pet carrier by putting "Snoopy" in the bag, carrying him around, and then unpacking him, imparts a recognizable and significant amount of play value to both the components. As such, the components 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 to create different "play scenarios" for "Snoopy" and his "doghouse."

The ENs 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 ENs 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) 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., Headquarters Ruling Letters (HRL) 086407 of March 22, 1990, HRL 086330 of May 14, 1990, and HRL 950700 dated August 25, 1993. 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.

Because the "Snoopy Play Set's" components combine two complete articles, a plush dog and a dog-shaped handbag, which are intended for use together to occupy the user in a pleasant or enjoyable (i.e., amusing) way, the "Snoopy Play Set" meets the requirements for classification as a toy set. We note that in HRL 957894 dated December 14, 1995, we indicated that an article identified as "Tattoo Graphix" was not classifiable as a toy set because a single component of the set, the carrying case, predominated over the other set components. Such analysis was applied to the "Snoopy Play Set" in NYRL B83149. Further review of the HTSUS and the ENs 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. A proposal to revoke HRL 957894 was published on April 15, 1998, in Vol. 32 Customs Bulletin No. 15. As a result of finding the "Snoopy Play Set" to be a toy set properly classified in Chapter 95, classification of the articles elsewhere in the HTSUS is precluded.

HOLDING:

The "Snoopy Play Set" is classified in subheading 9503.70.00, HTSUS, the provision for "[o]ther toys; reduced-size ("scale") models and similar recreation models, working or not; puzzles of all kinds; parts and accessories thereof: [o]ther toys, put up in sets or outfits, and parts and accessories thereof," with a general 1998 column one duty rate of free.

NYRL B83149 is revoked. In accordance with 19 U.S.C. publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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