CLA-2 CO:R:C:F 089296 STB
Mr. Joel K. Simon
Serko & Simon
One World Trade Center
New York, N.Y. 10048
RE: Bear Box with Bear
Dear Mr. Simon:
This letter is in response to your letter of May 7, 1991,
requesting the tariff classification of a Bear Box which contains
and is sold with a small flocked three-dimensional figure of a
bear and is to be imported from Hong Kong. A sample was
submitted with your request.
The submitted sample consists of a plastic container with a
cardboard top and back. The cardboard is shaped and stylized to
depict a bear likeness with a depiction of a bear on the cover.
The plastic container is generally shaped in the outline of a
bear figure. Inside the container is a flocked bear with
moveable arms and legs. The bear is approximately 3-1/2 inches
The submitted component breakdown for the box shows that the
paper (paperboard) weighs approximately .50 ounces and is valued
at 30 cents each. The plastic part weighs .83 ounces per piece
and is valued at 10 cents each. The bear is shown to weigh .33
ounces and is valued at 15 cents each. The total unit (bear and
box) is listed as weighing 1.66 ounces and valued at 55 cents
What is the proper classification of the Bear Box with Bear?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
legal framework in which merchandise is to be classified under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). The systematic detail of the harmonized system 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 relevant 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.
First, we note that the bear and bear box cannot be
classified by reference to GRI 1 because the bear and box are
classifiable in two different headings. The flocked bear is
classifiable in heading 9503, HTSUSA, which provides for toys
representing animals. The box is classifiable in either heading
4823, HTSUSA, which provides for articles of paperboard, or
heading 3926, HTSUSA, which provides for articles of plastic.
Before determining whether this merchandise is classifiable
as a set or composite good under GRI 3(b), we will examine GRI
5(a). GRI 5(a) states as follows:
5. In addition to the foregoing provisions, the
following rules shall apply in respect of the
goods referred to therein:
(a) Camera cases, musical instrument cases, gun
cases, drawing instrument cases, necklace cases
and similar containers, specially shaped or fitted
to contain a specific article or set of articles,
suitable for long-term use and entered with the
articles for which they are intended, shall be
classified with such articles when of a kind
normally sold therewith. This rule does not,
however, apply to containers which give the whole
its essential character.
In this case, GRI 5(a) does not apply. Although the subject
box seems to be specially shaped to hold the flocked bear, such a
box is not "of a kind normally sold therewith" flocked bears.
Flocked bears are not normally sold with their own special boxes
and containers unlike cameras, musical instruments and the other
exemplars mentioned in GRI 5(a). This application of GRI 5(a) is
supported by Headquarters Ruling Letter 084257, dated July 14,
1989, in which Customs ruled that textile shoe bags are not
normally sold with or used for packing shoes (shoe boxes are) and
therefore, the bags were not classified with the shoes under
GRIs 5(a) and 5(b).
Next we must refer to GRI 3(b), which states as follows:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and
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, insofar as the criterion is applicable.
Explanatory Note VIII to GRI 3(b) describes the finding of
essential character thusly:
(VIII) The 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 a constituent
material in relation to the use of the goods.
It is our determination that neither the bear nor the box
provides the essential character of this merchandise. Just as
some users (mostly children) will view the flocked bear as the
most important of the two items, there will be others who will
make the most use of the box. Although the two items are meant
to be used together, they are both equally capable of standing
alone; it is not clear which item would provide the primary draw
to the potential consumer. Any bulk or value difference between
the two items is offset by the equality in play value, and
possible other uses, of the bear and box.
Reference must then be made to GRI 3(c) which states as
(c) When goods cannot be classified by reference to
3(a) or 3(b), they shall be classified under the
heading which occurs last in numerical order
among those which equally merit consideration.
As noted above, the bear is classifiable in heading 9503, HTSUSA,
and the box is classifiable in either heading 4823, HTSUSA, or
heading 3926, HTSUSA. Since the classification heading in which
the bear falls is last in numerical order to either possible
classification headings for the box, we will not address the
proper classification of the box alone. The merchandise is
classifiable in the provision applicable to the flocked bear
which is subheading 9503.49.0020, HTSUSA, the provision for other
toys representing animals.
The Bear Box with Bear is classified in subheading
9503.49.0020, HTSUSA, the provision for toys representing animals
or non-human creatures and parts and accessories thereof, other,
toys not having a spring mechanism, other. The applicable duty
rate is 6.8% ad valorem.
John Durant, Director
Commercial Rulings Division