CLA-2 RR:CR:GC 959550 RC
Port Director of Customs
c/o Chief, Residual Liquidation and Protest Branch
300 South Ferry Street
Terminal Island, California 90731
RE: Protest 2704-94-102815, "Barbie 100 Piece Gift Set"
Dear Port Director:
This is our decision on protest 2704-94-102815, timely filed
October 26, 1994, against your decision in the classification of
a "Barbie 100 Piece Gift Set" under the Harmonized Tariff
Schedule of the United States (HTSUS). In preparing this
decision, we have also considered a supplemental submission dated
October 27, 1997.
FACTS:
The "Barbie 100 Piece Gift Set" (item 65293) consists of
what appears to be approximately 100 accessories for a "Barbie"
doll, such as, doll clothing and miscellaneous plastic items,
such as, shoes, a comb, a brush, a cat, etc., intended for use in
playing with a "Barbie" doll. These articles are accompanied by
a durable pink plastic carry bag that measures approximately 13
inches by 11 inches by one inch. The carry bag features two
handle holes of reinforced plastic, the name "Barbie," and a
colorful depiction of "Barbie" carrying several shopping bags.
The "Barbie 100 Piece Gift Set" is imported packaged for retail
sale and is marketed to girls ages five and up. A sample was
submitted for our review.
You classified the individual components of the "Barbie 100
Piece Gift Set" separately in the following provisions:
The carry bag, in subheading 4202.22.1500, HTSUS,
as a handbag with outer surface or sheeting of
plastic
The doll clothing and accessories, in subheading
9502.91.0000, HTSUS, as parts and accessories of
dolls representing only human beings, garments and
accessories thereof, footwear and headgear
The remaining items, in subheading 9503.90.6000,
HTSUS, as other toys.
In 1994, all of the above classifications were free of duty,
except for the carry bag (subheading 4202.22.1500) which was
dutiable at 20 percent ad valorem.
The protestant claims that the merchandise should be
classified under subheading 9503.70.8000, HTSUS, the provision
for other toys, put up in sets or, alternatively, by application
of GRI 3(b), in subheading 9502.91.0000, HTSUS, the provision for
doll clothing or, alternatively, by application of GRI 3(c), in
subheading 9503.90.6000, HTSUS, the provision for other toys.
Except as otherwise noted, all of the HTSUS provisions
discussed herein are those which were in effect at the time the
merchandise covered by the referenced protest was entered (1994).
ISSUE:
Whether the items comprising the "Barbie 100 Piece Gift Set"
are classifiable as a set or separately.
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 relevant subheadings are as follows:
4202.22.1500 handbags with outer surface or sheeting of
plastic
9502.91.0000 Parts and accessories of dolls representing
only human beings, garments and accessories
thereof, footwear and headgear
9503.90.6000 Other toys
Are the Articles At Issue Classifiable as Toys?
The term "toy" is not defined in the HTSUS. However, in
understanding the language of the HTSUS, the Explanatory Notes
(EN's) of the Harmonized Commodity Description and Coding System
may be utilized. The EN's, 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).
EN's 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 for "toys," we have interpreted the just-quoted
passage from the EN's 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. This view has been articulated by this Office in
a number of prior rulings, including HRL 950700 of August 23,
1993.
The EN's 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 EN's 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, HTSUS) 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., HQ 086407 of March 22, 1990, HQ 086330 of May 14, 1990, and
HQ 950700. 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.
Although we have previously noted in connection with our
analysis of toy sets that no single component should predominate
over the other set components (see, e.g., HQ 950700), further
review of the HTS and the EN's 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.
The "Barbie 100 Piece Gift Set" combines various articles,
including a carry bag, doll clothing and accessories, and various
other scale-size items that are shown on the retail package as
being arranged on what appear to be store shelves (in addition to
the layout of the items on the shelves, there are numerous
examples of several of the items, suggesting a sale environment).
Although no specific activity theme is stated on the retail
package, the articles appear to be intended for use together in a
play activity that involves "Barbie" going shopping, either by
herself or with other "Barbie" friends, to buy articles for
herself or as gifts for her "Barbie" friends. In this
connection, we view the scale-size cat figure (solid pink in
color in the sample we examined) as representing not a real cat
(e.g., a pet), but a sculpture of a cat (or a stuffed cat) that
might be purchased by "Barbie." Together, all of the articles
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 in selecting items for "Barbie" to
buy. Accordingly, the articles meet the requirements for
classification as toy sets.
The bright pink plastic carry bag, of relatively substantial
construction, depicts a Barbie doll carrying several shopping
bags. Pretending to buy the doll clothing and accessories,
putting them in the bag, carrying them around, and unpacking
them, is all part of the play activity of shopping for and with
"Barbie." In this instance, the carry bag serves as a logical
adjunct to the
other accessories, both as a shopping bag to emulate "Barbie"
carrying her purchases home from the store, as pictured on the
bag, and as a storage bag for the clothing and other accessory
items of the set when not in use.
HOLDING:
The "Barbie 100 Piece Gift Set" is classified in subheading
9503.70.8000, HTSUS, the provision for "Other toys . . . and
accessories thereof: Other toys, put up in sets or outfits, and
parts and accessories thereof: Other: Other." The applicable
rate of duty is 6.8 percent ad valorem (1994). The applicable
subheading is now 9503.70.00, with a general 1998 column one duty
rate of free.
You are instructed to allow the protest in full. A copy of
this decision should be attached to the Customs Form 19 to be
returned to the protestant.
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 entries in accordance with the decision must
be accomplished prior to mailing of the decision. Sixty days
from the date of the 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, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division