CLA-2 CO:R:C:F 089781 LPF
District Director
U.S. Customs Service
One World Trade Center
Suite 534
Long Beach, CA 90831-0700
RE: Decision on Application for Further Review of Protest No.
2704-91-101431, filed March 26, 1991, concerning the
classification of "Minnie 'N Me" Vanity Set
Dear Sir:
This is a decision on a protest filed March 20, 1991 against
your decision in the classification of the merchandise in the
following entries with dates of liquidation:
entry number date entered date liquidated
xxxxxxx xxxxxxxxxxxxxx Dec. 21, 1990
xxxxxxx xxxxxxxxxxxxxx Dec. 28, 1990
xxxxxxx xxxxxxxxxxxxxx Jan. 4, 1991
xxxxxxx xxxxxxxxxxxxxx Mar. 1, 1991
xxxxxxx xxxxxxxxxxxxxx Feb. 1, 1991
xxxxxxx xxxxxxxxxxxxxx Feb. 22, 1991
xxxxxxx xxxxxxxxxxxxxx Mar. 8, 1991
xxxxxxx xxxxxxxxxxxxxx Mar. 15, 1991
FACTS:
You classified the "Minnie 'N Me" Vanity Set under
9603.29.8000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), providing for hair brushes valued over 40
cents each, for entry xxxxxxx; under 9615.11.3000, HTSUSA,
providing for other combs valued over $4.50 per gross for entries
xxxxxxx and xxxxxxx; and under 9615.11.3000 and 9503.90.6000,
HTSUSA, providing for other combs valued over $4.50 per gross and
other toys, respectively, for entries xxxxxxx, xxxxxxx, xxxxxxx,
xxxxxxx and xxxxxxx.
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The protestant claims the merchandise should be classified
under subheading 9603.29.8000, HTSUSA, providing for hair brushes
valued over 40 cents each, or alternatively, under subheading
9615.11.3000, HTSUSA, providing for other combs valued over $4.50
per gross.
The "Minnie 'N Me" Vanity Set consists of two components.
One component is a hair brush and mirror item. On one side is a
heart shaped mirror approximately two and a half inches in width
by three inches in length. Directly below is a plastic replica
of Minnie Mouse. Both are embedded in plastic. On the other
side of the plastic is a heart shaped hair brush with bristles
approximately two and a half inches in width by three inches in
length. A flat handle, about four inches long, lies below the
bristles enabling the child to use the item as a hair brush.
The other component is a comb approximately six and a half
inches in length by two inches in width. Both components are
packaged and sold together in a box accompanied by a punch-out
"Minnie 'N Me" logo. The back of the box includes cleaning
instructions for the brush and comb.
ISSUE:
Whether the "Minnie 'N Me" Vanity Set is a set for tariff
purposes and is classifiable as a toy under heading 9503, HTSUSA,
or alternatively, by its individual components: a plastic comb
under heading 9615, HTSUSA; brush under heading 9603, HTSUSA; or
plastic mirror under heading 3924, HTSUSA.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of 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. 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.
Heading 9503, HTSUSA, pertains in part, to "other toys"
(besides wheeled toys and dolls). The Explanatory Note to
Chapter 95, HTSUSA, indicates that "this chapter covers toys of
all kinds whether designed for the amusement of children or
adults." The phrase, "designed for the amusement of" is
generally understood to indicate that one considers the use of
the article when classifying it as a toy.
-3-
Additional U.S. Rule of Interpretation 1(a), HTSUSA,
provides that, absent language to the contrary, the following
applies:
[A] tariff classification controlled by use (other than
actual 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;....
Therefore, in order to be classified as a toy, the "Minnie 'N Me"
Vanity Set would need to be principally used for amusement.
Customs defines principal use as that use which exceeds each
other single use of the article (HRL 088694). In this case, the
principal use of the item will not be as a toy.
The court stated in Ideal Toy Corp. v. United States, 78
Cust. Ct. 28, C.D. 4688 (1977), "when amusement and utility
become locked in controversy, the question becomes one of
determining whether the amusement is incidental to the
utilitarian purpose, or the utilitarian purpose is incidental to
the amusement." The "Minnie 'N Me" Vanity Set is primarily
designed to enhance the grooming and personal appearance of a
child. The brush and mirror component is not flimsily
constructed as is a toy or article for amusement. The character
imprint of Minnie Mouse serves only a decorative role.
One may contrast the "Minnie 'N Me" Vanity Set with the
merchandise that was the subject in HRL's 082974 and 082991.
Those HRL's involved combs and mirrors of a limited functional
capacity, in toy sets which included other articles, such as toy
jewelry and make-up, designed to amuse the child. For these
reasons, the "Minnie 'N Me" Vanity Set does not qualify as a toy
under 9503, HTSUSA. Consequently, we must classify the vanity
set elsewhere.
As discussed, supra, the vanity set consists of several
components. One may classify these components as follows: the
plastic comb under subheading 9615.11.3000, HTSUSA; the hair
brush under subheading 9603.29.8000, HTSUSA; and the plastic
mirror under subheading 3924.90.5000, HTSUSA. In accordance with
GRI 6, GRI 3(a) explains, in pertinent part, that:
[W]hen goods are prima facie, classifiable under two or
more [sub]headings, the articles are to be classified
under the [sub]heading which provides the most specific
description of the good in question. All [sub]headings
are regarded as equally specific, however, when each
refers to part only of the items in a set put up for
retail sale....
-4-
Therefore, we must now determine whether the vanity set qualifies
as a set put up for retail sale. To this end, Explanatory Note X
to GRI 3(b) provides that the term "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;
(b) consist of products or articles put up together to
meet a particular need or carry out a specific
activity; and
(c) are put up in a manner suitable for sale directly
to users without repacking (e.g., in boxes or cases or
on boards).
The vanity set meets the criteria for classification as a set
since: (a) the comb, brush and mirror are classifiable in
different subheadings; (b) the merchandise consists of items sold
together to enhance a child's personal appearance and grooming;
and (c) the set is packaged in a carton ready for direct sale to
consumers without any repacking.
For these reasons, the "Minnie 'N Me" Vanity Set is
classifiable as a set. Since the three subheadings mentioned
above refer only to part of the items in the set put up for
retail sale, we must attempt to classify the set pursuant to GRI
3(b) which provides, in pertinent part, that goods put up in sets
for retail sale, which cannot be classified by reference to 3(a),
shall be classified as if they consisted of the material or
component which gives them their essential character.
Explanatory Note VIII to GRI 3(b) provides that essential
character may be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
constituent material in relation to the use of the goods.
Although the brush has the greatest value of the components, this
alone is not dispositive of essential character. In fact, some
of the brush's bulk and weight is derived from the attached
mirror. The comb significantly provides bulk and weight to the
vanity set as well. Furthermore, based on use, no one component
of the vanity set imparts essential character. The packaging
carton, for instance, refers to a brush/mirror component and a
comb component which further illustrates the difficulty in
deeming the brush to represent essential character.
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Therefore, we must turn our focus to GRI 3(c) which explains
that when goods cannot be classified by reference to 3(a) or
3(b), they shall be classified under the [sub]heading which
occurs last in numerical order among those which equally merit
consideration. According to GRI 3(c) this item is classifiable
under subheading 9615.11.3000, HTSUSA; the provision which occurs
last in numerical order.
HOLDING:
The "Minnie 'N Me" Vanity Set is properly classified under
subheading 9615.11.3000, HTSUSA, which provides for combs, hair-
slides and the like...; of hard rubber or plastics: combs: valued
over $4.50 per gross: other (than hard rubber). The general
column one rate of duty is 28.8 cents/gross + 4.6 percent ad
valorem.
The protest should be denied with respect to entries xxxxxxx
and xxxxxxx, which were properly classified. The protest should
be allowed in full for the remaining entries. A copy of this
decision with the Form 19 should be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division