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HQ 966633




March 18, 2005

CLA-2 RR:CR:GC 966633 MG

CATEGORY: CLASSIFICATION

TARIFF NO.: 3923.50.00.00

Area Port Director
Bureau of Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130

RE: Request for Internal Advice (IA) 03/017; Roto Toppers

Dear Port Director:

This constitutes our decision regarding your memorandum (CLA-1-CL:PD:FO SB), dated July 16, 2003, forwarding a request for Internal Advice (IA) 03/017 by Global Logistics concerning the classification of plastic Roto Toppers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Roto Toppers are plastic articles that function as closure on the top of beverage containers. Each closure consists of two fitted pieces, a plastic threaded lid and a blow-molded three dimensional plastic object in the form of well-recognized children’s character attached to the lid. Each closure on the topper includes a pop-up sipper. The Roto Toppers are not attached to the beverage containers at the time of importation and are designed to be detached from the containers and saved as an interactive or collectible toy. The sample Roto Toppers included with this IA request include Sponge Bob, Blue, Dora the Explorer, RugRats Child with soccer ball, RugRats Child with baseball, and Rocker Power Teen on a skateboard.

The Port classified the Roto Toppers in subheading 3923.50.00.00, HTSUS, as “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Stoppers, lids, caps and other closures.” Importer claims that the Roto Toppers should be classified in subheading 9503.49.00.00, 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.”

ISSUE:

Whether the Roto Topper should be classified under heading 3923, HTSUS, as stoppers, lids, caps and other closures, or under heading 9503, HTSUS, as a toy.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. 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 HTSUS provisions under consideration are as follows:

Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:

3923.50.00.00 Stoppers, lids, caps and other closures.

9503 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 accessories thereof:

9503.49.00.00 Other.

The term “toy” is not defined in the HTSUS. However, the general EN for Chapter 95 states that this “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Although nothing in heading 9503 or the relevant chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade has found inherent in various dictionary definitions of “toy” the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. See Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Because heading 9503, HTSUS, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. Additional U.S. Rule of Interpretation 1(a), HTSUS. See also Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999).

The subject articles are novelty items consisting of two fitted pieces that are intricately intertwined. The pieces are prima facie classifiable as follows, the threaded lid and sipper under heading 3923, HTSUS, and the molded plastic portion of a cartoon character under heading 9503, HTSUS. The items are, therefore, not specifically provided for in any one heading. Hence, for tariff purposes, they constitute goods consisting of two or more substances or materials. Accordingly, they may not be classified solely on the basis of GRI 1. GRI 2(a) is also inapplicable because it applies to incomplete or unfinished articles and the subject Roto Toppers are imported in a finished complete condition. In this regard, GRI 2(b) states that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, the heading providing the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or 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, even if one of them gives a more complete or precise description of the goods. Because the subject Roto Toppers are a composite good, we must apply GRI 3(b), which provides that composite goods are to be classified according to the component that gives the good its essential character. We must determine whether the toy or the threaded lid with sipper pop-up imparts the essential character to the Roto Topper.

EN VIII to GRI 3(b) explains that "[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 the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Better Home Plastics Corp. v. U.S., 915 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. U.S., 966 F.Supp. 1245 (CIT 1997), rehear’g denied, 994 F. Supp. 393 (1998); Vista Int’l Packing Co. v. U.S., 890 F. Supp. 1095 (CIT 1995). See also Pillowtex Corp. v. U.S., 893 F. Supp. 188 (CIT 1997), aff’d 171 F. 3d 1370 (CAFC 1999).

We have consistently held that where a composite good contains both functional and non-functional components, the functional component gives the item its essential character. See HQ 087831, dated November 27, 1990 (holding that under a GRI 3(b) analysis, the essential character of a split key ring with a non-utilitarian vinyl attachment was the steel element). However, Customs recognizes that where the toy component has a significant amount of manipulative play value, the toy imparts the essential character of the subject goods. In NY B85825, dated May 30, 1997, the toy component of a “Mr. Potato Head Key Ring” gave the good its essential character because the toy comes complete with attachable features, (i.e., eyes, noses and ears) that are stored in the back of its head and can be repeatedly rearranged. Also, the key chains (where essential character is that of a toy due to significant manipulative play value) come with various pieces that can be repeatedly rearranged. See HQ 965101 and 965102, both dated November 5, 2001 and HQ 964748 dated November 27, 2001.

In the instant case, the Roto Toppers provide an entertaining way to drink the contents from the bottle making the specific activity of drinking more attractive to the user. But this is function, not amusement. In the tariff context, “amuse” is mainly used in contrast to some utilitarian or functional quality, and the focus is whether an article is designed to amuse in the same way articles commonly thought of as toys do. See HQ 966046, dated May 16, 2003 and HQ 963638, dated November 2, 2001. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement." Therefore, if the level of play value and amusement of the article is not sufficient to constitute its principal use, the article is not a toy. See United States v. Topps Chewing Gum, Inc., 440 F.2d 1384 (1973); HQ 229863, dated February 10, 2004.

In HQ 962447, dated August 12, 1999, we classified the “Disneyland” Toppers as decorative lids and not as toys. We found that, although the toppers are interesting to look at they have no manipulative play value. We further concluded that since they are primarily decorative and are not principally designed to be played with, the toppers are not classified as toys. Similarly, in HQ 961840, dated May 7, 1999, we determined that the Jurassic Park Dinosaur Bottle Topper was not a toy. In NY H86142, dated January 4, 2002, we determined that the Easter Push Pop Candy Toppers are not toys. In HQ 966046, dated May 16, 2003, we determined that the “Bob the Builder” bubble bath topper and collection of bath products are toys. See also HQ 959588, dated February 5, 1997; HQ 959784, dated March 25, 1997.

In Minnetonka Brands, Inc. v. United States, supra, the court stated that in determining whether the imports are of the class or kind of merchandise whose principal use is amusement, diversion or play, or the conveyance or packaging of goods, certain factors must be examined: 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. See United States v. Carborundum Company, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. We note that that importer has not provided information relative to the Carborundum factors outlined above. In this regard, importer has failed meet its burden by demonstrating to our satisfaction that the essential character and principal use of the Roto Toppers are that of a toy. It is our position that the threaded lid imparts the essential character to the Roto Topper and that the same is not a toy. Accordingly, we find that the Roto Toppers are described in heading 3923, HTSUS, which covers stoppers, lids, caps and other closures of plastic.

The subject Roto Toppers are classified in subheading 3923.50.00.00, HTSUS, as “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Stoppers, lids, caps and other closures.”

HOLDING:

The Roto Toppers are classified in subheading 3923.50.00.00, HTSUS, as “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Stoppers, lids, caps and other closures.” The 2005 column one, general rate of duty for each of the above Roto Toppers is 5.3%, ad valorem. Duty rates are provided for the IA applicant’s convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

You are to mail this decision to the IA applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director,
Commercial Rulings Division


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