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HQ 964218




September 28, 2001

CLA-2 RR:CR:GC 964218 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.99.0000; 9503.49.0025; 9606.21.6000; 9609.10.0000

Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 94126

RE: Protest 2704-99-101967; "Troll Button Covers and Pencil Topper Trolls "

Dear Director:

This is a decision on Protest 2704-99-101967 against your decision in the classification of "Troll Button Covers and Pencil Topper Trolls" under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1998, were liquidated during May 1999, and the protest timely filed on July 30, 1999.

FACTS:

The merchandise consists of Item # 8847, described as "Troll Button Covers" and Item #8676, described as "Pencil Topper Trolls." Each item is sold in a blister pack. The Button Covers item consists of 5 pieces, four trolls with plastic button covers glued to their backs and a comb for combing their hair. A photograph of the intended use shows an individual with a shirt that is buttoned up the front. The wearer has already affixed one of the trolls to a middle button and is in the process of affixing another troll to a higher button. The articles are used to adorn ordinary buttons. The wearer may use the included comb, about 2½ inches long, to comb the troll's hair. The plastic portion of the troll is about 1¼ inch high. Including the hair, the object measures about 3½ inches high. It is composed of polyvinylchloride as is the portion that covers and secures the troll to the button. Item #8676, the Pencil Topper Trolls, consists of three trolls, a comb and pencil in a blister pack. These trolls measure about 4½ inches from the top of the hair to the foot. The troll figure measures about 1½ inches high and also appears to be composed of polyvinylchloride. A line drawing on the back of the package demonstrates how one should comb the troll's hair with the included comb. A cavity at the bottom of the troll accommodates a pencil. The trolls can be played with without use of the pencil and the cavity would be unnoticeable and would not impair their being played with.

You classified the Troll Button Covers in subheading 9606.21.6000, HTSUS, in the provision for "Buttons, press-fasteners, snap-fasteners and press-studs, button molds and other parts of these articles; button blanks: Buttons: Of plastics, not covered with textile material: Other." The comb was classified in subheading 9615.11.3000, HTSUS, the provision for "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: Combs, hair-slides and the like: Of hard rubber or plastics: Combs: Valued over $4.50 per gross: Other."

You classified the Pencil Topper Trolls in subheading 9609.10.0000, the provision for "Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors' chalks: Pencils and crayons, with leads encased in a rigid sheath."

The protestant claims that the merchandise is classified in heading 9503, specifically in subheadings 9503.49.0025 and 9503.49.0050 for the troll button covers and in subheading 9503.49.0025 and 9503.49.0050, HTSUS, the provision for “Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other.”

ISSUE:

Whether the " Troll Button Covers" and "Pencil Topper Trolls " are classified in heading 9503, HTSUS, as other toys or as buttons, or as toy assortments including a pencil.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the Harmonized System at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Customs has classified button covers in the provision for buttons when the issue arose early in the administration of the HTSUS. See Headquarters Ruling Letter (HQ) 088972, issued June 7, 1991, wherein a button cover in the form of a plastic skull claimed to be classified as a festive article of heading 9505, was classified in 9606.21.60, HTSUS. Likewise, New York Ruling (NY) A83732, issued May 28, 1996, classified a polyethene button cover in subheading 9606.21.6000. See also NY 883062, issued March 15, 1993, in which decorative button covers made of cow bone were classified in 9606.29.6000. The original classification was based on lexicographic sources and a reading of the ENs to heading 9606 that indicates that the buttons provision is broadly construed and encompasses articles used for "fastening or decorating articles of apparel." Emphasis added. The instant articles decorate or adorn articles of apparel and would fall short of their intended use if employed in another manner.

The protestant has argued that the troll figures are toys, regardless of the button cover attachment. It is argued that because Customs would readily agree that the troll figures imported alone are toys, Customs should agree that a troll figure, however changed in its use and diverted to another activity, remains a toy. Customs disagrees. This alteration of a troll from a plaything to an article of adornment or decoration, a change that becomes part of a button on a garment, leads to a change in classification. There is no dispute that the resulting button cover is whimsical and of a novelty nature. It still is marketed and sold as a button cover to be worn on clothing. These articles, if imported alone, would be classified in subheading 9606.21.60, HTSUS, the provision for "Buttons, press-fasteners, snap-fasteners and press-studs, button molds and other parts of these articles; button blanks: Buttons: Of plastics, not covered with textile material: Other." The comb, if imported alone, would be classified in subheading 9502.99.0000, HTSUS, as an accessory to a doll of heading 9502, because the instant comb falls into a class or kind of articles principally used with dolls. Customs recognizes that this particular comb will probably be used with the troll which Customs has ruled not to be a doll. Moreover, Customs recognizes that although there is a type of comb of approximately this size for use in moustache grooming, this comb is distinguishable from the one used by humans because it has teeth more widely spaced. Also, the packaging and marketing makes it clear that the use is not for human grooming.

As indicated, the Troll Button Covers represent goods which are, prima facie, classifiable under two or more headings. Therefore, GRI 3 requires that "when two or more headings each refer to . . . part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods." GRI 3 requires under those circumstances that classification shall be determined according to the component which gives the set its essential character. The ENs to GRI 3 indicate at (X) that "goods put up in sets for retail sale" "shall be taken to mean goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings." Further, the goods "(b) consist of products or articles put up together to meet a particular need or carry out a specific activity." The Troll Button Covers meet these criteria because the comb and the button covers are put up to allow the wearing of the button covers "properly groomed" with the comb. Consequently, they are classified as if they consisted of the component which gives them their essential character. In this case, the essential character is provided by the Troll Button Cover component. Therefore, this set is classified according to GRI 3(b) in subheading 9606.21.60, HTSUS, the provision for "Buttons, press-fasteners, snap-fasteners and press-studs, button molds and other parts of these articles; button blanks: Buttons: Of plastics, not covered with textile material: Other."

With respect to the Troll Pencil Toppers, the protestant argues first that all the figures and the comb are toys of heading 9503 and that the pencil constitutes an accessory to the toy. Next, the protestant argues against the classification of the whole grouping as a set put up for retail sale with the essential character being the pencil, an analysis derived by application of GRI 3(b). This office agrees in part that the best analysis is not to view the articles as a set put up for retail sale. The articles are put up together for retail sale, but they do not meet the criteria essential for a set. In the language of the ENs to GRI 3 at (X), they do not "(b) consist of products or articles put up together to meet a particular need or carry out a specific activity." Instead, the assortment provides two trolls to play with, one to use as a pencil topper and a comb for using with all the trolls, wherever situated. It is incongruous to imagine that one troll is a pencil topper to be used on a pencil and that the other two trolls are "spare" trolls, for use in case the other ones are lost. Likewise, the use of the pencil seems to be an option to suggest how the topper could be used. However, there is nothing about the pencil that is particularly adapted to this topper, except that the topper fits over the end of the pencil. If the user of the product wanted to put the trolls on the end of pencils, any three standard pencils would suffice, in that the included pencil is of standard dimensions.

Since the Pencil Topper Trolls assortment fails to qualify as a set, the components are to be classified individually under GRI 1. The trolls are classified as other toys in subheading 9503.49.0025, HTSUS. HQ 081201, issued October 3, 1988. The comb is classified in subheading 9502.99.0000, HTSUS, as an accessory to a doll of heading 9502, HTSUS. See analysis for combs supra. The pencil is classified subheading 9609.10.0000, the provision for "Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors' chalks: Pencils and crayons, with leads encased in a rigid sheath." We note HQ 964002, issued September 18, 2001, which discusses the classification of pencil toppers. It states that "Customs has consistently held that when a pencil combined with a topper is imported, the combined article is classified as the pencil under subheading 9609.10.00, HTSUS." But, "[w]hen imported separately from the pencil, Customs classifies the pencil topper according to its individual characteristics." In the instant case, the toppers are being treated as though they were imported separately because, as explained, supra, they are not coupled with pencils and constitute items that are likely to be used individually.

HOLDING:

"Troll Button Covers" are classified as a set put up for retail sale in subheading 9606.21.6000, HTSUS, as buttons of plastics, not covered with textile material.

The components of the "Pencil Topper Trolls " are classified individually. The trolls are classified in subheading 9503.49.0025, HTSUS, as “Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other, Toys.” The comb is classified in subheading 9502.99.0000, HTSUS, as "Dolls representing only human beings and parts and accessories thereof: Parts and accessories: Other." The pencil is classified in subheading 9609.10.0000, HTSUS, in the provision for pencils.

The protest should be denied except to the extent that classification as indicated above results in a partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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