CLA-2 CO:R:C:F 950700 LPF
Mr. Bruce Shulman
Stein Shostak Shostak & O'Hara
Suite 807
1620 L Street, NW
Washington, D.C. 20036-5605
RE: Modification of Pre-Entry Classification Ruling 860593;
Minnie 'N Me Looking Pretty Sets; Bathtime Fun Barbie Deep
Sea Jewelry Playset; Minnie 'N Me Pop Jewelry Sets;
Subheadings 7117.90.5000, 9503.70.8000, 9615.11.4000;
Imitation Jewelry; Other toys put up in sets; Combs, hair-
slides and the like.
Dear Mr. Shulman:
In Pre-Entry Classification Ruling (PC) 860593 issued March
12, 1991, two Minnie 'N Me Looking Pretty Sets (Item #6902), a
Bathtime Fun Barbie Deep Sea Jewelry Playset (Item #7235), and
two Minnie 'N Me Pop Jewelry Sets (Item #6901), imported by
Mattel, Inc. from China, were classified under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA). We have
reviewed PC 860593 and have found it to be partially in error.
The correct classification is as follows.
FACTS:
1. Item #6902, Minnie 'N Me Looking Pretty Set, consists of
two assortments.
One assortment includes a comb, necklace, sunglasses and a
hairclip. All of the components incorporate a Minnie Mouse
decoration. The comb was classified in subheading
9615.11.3000 as combs, hair-slides and the like of hard
rubber or plastics valued over $4.50 per gross, at a general
column one duty rate of 28.8 cents per gross plus 4.6
percent ad valorem. The necklace was classified in
subheading 7117.90.5000 as imitation jewelry valued over 20
cents per dozen pieces or parts, at a general column one
duty rate of 11 percent ad valorem. The sunglasses were
classified in subheading 9004.10.0000 as spectacles, goggles
and the like, sunglasses, at a general column one duty rate
of 7.2 percent ad valorem. The hairclip was classified in
-2-
subheading 9615.11.4000 as combs, hair-slides and the like
of hard rubber or plastics not set with imitation pearls or
imitation gemstones, at a general column one duty rate of
5.3 percent ad valorem.
The other assortment includes a mirror, comb, necklace and
bracelet. All of the components incorporate a Minnie Mouse
decoration. The mirror was classified in subheading
9503.90.6000 as other toys not having a spring mechanism, at
a general column one duty rate of 6.8 percent ad valorem.
The comb was classified in subheading 9615.11.3000 as combs,
hair-slides and the like of hard rubber or plastics valued
over $4.50 per gross, at a general column one duty rate of
28.8 cents per gross plus 4.6 percent ad valorem. The
necklace and bracelet were classified in subheading
7117.90.5000 as imitation jewelry valued over 20 cents per
dozen pieces or parts, at a general column one duty rate of
11 percent ad valorem.
2. Item #7235, Bathtime Fun Barbie Deep Sea Jewelry Playset,
consists of a pop jewelry necklace and earring pieces and
miniature water squirters. This assortment was classified
in subheading 3926.90.3500 as other articles of plastics
and articles of other materials of headings 3901 to 3914,
other, beads, bugles and spangles, at a general column one
duty rate of 6.6 ad valorem.
3. Item #6901, Minnie 'N Me Pop Jewelry Set, consists of
two assortments. One includes a necklace with a Minnie
Mouse pendant, a bracelet and two barrettes. The other
consists of a necklace and bracelet with Minnie Mouse
pendants and includes a miniature mirror and a comb designed
to be kept inside the pendants. Both assortments were
classified in subheading 7117.90.5000, as imitation jewelry
valued over 20 cents per dozen pieces or parts, at a general
column one duty rate of 11 percent ad valorem.
The inquirer contends that all of the articles should be
classified in subheading 9503.70.8000 as other toys put up in
sets or outfits, at a general column one duty rate of 6.8 percent
ad valorem.
ISSUE:
Whether the merchandise is classifiable, as a whole, in
subheading 9503.70 as other toys, put up in sets or outfits or is
classifiable in other various headings applicable to its
components, including heading 7117 as imitation jewelry.
-3-
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. Most 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. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
The primary question this ruling addresses is whether the
subject articles are classifiable in the various headings
providing for their components, including heading 7117 as
imitation jewelry, or are classifiable in their entirety within
heading 9503 as other toys. Although the provision for toys put
up in sets, 9503.70, is found at the six-digit subheading level,
Customs has utilized the toys put up in sets concept to
determine, from the outset, whether certain articles normally
classified elsewhere in the HTSUSA may fall within the toy
provision based on the manner they are put up.
Although the term "toy," in general, is not specifically
defined in the tariff, the EN's to Chapter 95, HTSUSA, indicate
that, "this Chapter covers toys of all kinds whether designed for
the amusement of children or adults." It has been Customs
position that the amusement requirement means that toys should be
designed and used principally for amusement. See Additional U.S.
Rule of Interpretation 1(a), HTSUSA.
However, the merchandise in this case does not consist of
merely one article, but contains several distinct articles that
potentially may be classified as toys. The EN's to 9503 provide
that, "collections 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)."
Customs, in general, classifies merchandise fitting this
description in 9503.70, as toys put up in sets or outfits.
Recently, our office has consulted with the inquirer, counsel,
and the applicable National and Field Import Specialists, as well
as with officials from Canadian and British Customs regarding the
appropriate application of toys put up in sets.
-4-
Customs still maintains that the criteria applicable to a
GRI 3(a) set put up for retail sale (e.g., at least two items
classifiable in different headings, items put up to meet a
particular need or carry out a specific activity, and items put
up in a manner suitable for sale without repacking) are not
applicable to toys put up in sets. In this regard, we note that
some of the exemplars of toy sets found in the EN's (e.g., toy
arms, tin soldiers) do not fit the criteria for a GRI 3(a) set
because they are not classifiable in different headings. In
addition, we find no indication that toys put up in sets must
meet a particular need or carry out a specific activity. If
9503.70 were not considered distinct from GRI 3(a), all such
merchandise would be classified, pursuant to GRI 3(b) or 3(c), by
its essential character which would vitiate the need for the
provision altogether.
The application of the toy set provision is relatively
straightforward when each article within the set individually is
classified as a toy. However, a greater challenge arises when
classifying merchandise consisting entirely or partly of articles
which individually are classified elsewhere in the HTSUSA.
Whereas the EN's to 9503 indicate that in the latter situation
articles are classified within 9503 when put up in a form
indicating their use as toys, it is our position that articles
which normally would be classified elsewhere in the HTSUSA may be
classified as toys when put up together so that they are designed
and used principally for amusement. In contrast to GRI 3(a)
sets, the articles need not meet a particular need or carry out a
specific activity.
When determining which articles qualify as toys put up in
sets, the National Import Specialists have stated that:
[Subheading]...9503.70 encompasses a combination
of two or more mutually complementary complete
articles in a retail package, the essential character
of which is established by the combination of the
articles and not by any individual article in the
combination.
The NIS' also have cautioned against classifying as a toy
set any retail package sold to children which merely contains
more than one item. It is our office's position that merchandise
classified in 9503.70 should contain complementary articles
generally used together as a combination, and not individually,
to provide amusement (e.g., the components possess some nexus and
work together to amuse). However, not all the articles are
required to be used at the same time to be considered a toy put
up in a set. In addition, no individual article should
predominate over any in the combination.
-5-
When merchandise consists entirely or partly of articles
which individually are classified elsewhere in the HTSUSA, the
manner in which the articles are put up together (e.g., packaged
and sold as a combination of articles) should convert the
articles from their design and use as articles classifiable
elsewhere in the HTSUSA to toys. If no "conversion" results from
the manner in which the articles are put up together (e.g., the
articles are designed and used the same as when put up
individually), this may indicate that the articles should be
classified individually in their appropriate HTSUSA headings.
Minnie 'N Me Looking Pretty Sets
In requesting classification of the merchandise under
9503.70, as toys put up in sets, the inquirer posits that even if
the articles, individually, may not be classified as toys within
9503, that together "they are put up in a form clearly indicating
their use as toys."
We agree that these assortments are designed and used
principally for amusement. One can envision little girls playing
with the instant merchandise, exchanging one article for another,
mixing and matching them, etc. in a more temporary and playful
manner than would be the case merely with cosmetic or fake
jewelry that would be worn regularly and for an extended period
of time.
The articles comprising these combinations are complementary
insofar as no individual article predominates over any in the
set. They are used as a combination and since they work together
to amuse, they possess some nexus. Although the articles
individually may not possess much play value, when put up
together with other articles in this manner they have been
"converted" from articles for adornment or grooming to playthings
or toys.
The fact that the merchandise is not sold in jewelry or
sundry stores or in the jewelry or sundry sections of department
stores, but rather in toy stores, is suggestive but not probative
of classification as toys. We note that toy stores sell many
items that may not be considered toys, such as sporting goods,
candy, video game equipment and children's books. Likewise,
Customs finds that the environment of the sale (the advertisement
and display), which is geared to the child-consumer, is not, in
and of itself, dispositive of use as a toy.
In HRL 085020, issued October 30, 1989, merchandise
appearing almost identical to the Minnie 'N Me Looking Pretty
Sets were classified in 9503.70.80 as toys put up in sets. That
merchandise consisted of a pink plastic bead necklace, bracelet,
-6-
ring, comb, and mirror. The articles, most of which included a
Minnie Mouse decoration, were packed together for retail sale.
Other similar decisions include HRL 088663, issued June 3,
1991, involving a "Wrestling Champion Medallion and Headband
Set," and HRL's 082974 and 082991, issued February 7, 1990 and
February 9, 1990, respectively, involving various jewelry, make
up and grooming kits. These rulings all held that the
merchandise was classifiable as toys put up in sets. Those
items, some of which included imitation cosmetic products,
provided amusement by promoting make believe play or imitation of
grown up activity when put up together. The individual articles
were no longer used for adornment and for grooming but, when put
up together, were used as toys.
Bathtime Fun Barbie Deep Sea Jewelry Playset
For the reasons stated above, this merchandise is also "put
up in a form clearly indicating [its] use as toys." The set,
when put up in this manner, includes unique squirting and pop-
together features especially designed for use in the bathtub.
The ability of the merchandise to adorn is secondary to its
ability to provide amusement. Accordingly, the expectation of
the child-consumer is not to wear the merchandise for the purpose
of adornment, but rather to play with the merchandise for the
purpose of amusement. Even from a child's point of view, it
seems unlikely that this merchandise would be used out of the
bathtub. Rather than wear the merchandise, a child is likely to
disassemble and reassemble the merchandise repeatedly,
interchanging the water squirter, pop-beads and earring pieces
with each other.
These various articles serve a different purpose and are
used in a different manner when put up together, and not
individually. The combination of these articles and packaging as
a bathtub playset, "converts" the earrings and pop-beads from
imitation jewelry to toys.
The environment of the sale (the advertisement and display)
is suggestive of use as a toy. The packaging includes the words
"Bathtime Fun" along with photographs of a girl playing with the
merchandise while taking a bubble bath.
Minnie 'N Me Pop Jewelry Sets
As previously discussed, heading 9503 provides for other
toys, while heading 7117 pertains to imitation jewelry. Note 8
to Chapter 71 states that, for the purposes of the jewelry
provision (heading 7113), the expression "articles of jewelry"
means, "[A]ny small objects of personal adornment (gem-set or
not) (for example, rings, bracelets, necklaces, brooches,
-7-
earrings, watch chains, fobs, pendants...)." Similarly, Note 10
to Chapter 71 adds that, "[F]or the purposes of heading 7117, the
expression "imitation jewelry" means articles of jewelry within
the meaning of paragraph (a) of note 8 above...."
In contrast to the Looking Pretty Sets and Bathtime Fun
Playset, these articles are not "put up in a form clearly
indicating their use as toys." When put up together in this
manner the articles do not appear to be designed or used
principally for amusement, nor do they work together to amuse.
In essence, these various articles serve the same purpose and are
used in the same manner whether they are sold individually or are
put up together. The manner in which they are put up and
packaged does not "convert" them from articles for adornment to
toys.
Instead it appears that the expectation of a child-consumer
is to wear the articles for an extended period of time, in or out
of the home. It is unlikely that a child would bring this
particular merchandise with her to a friend's home merely for
play. The articles are not classifiable as toys or toys put up
in sets and must be classified elsewhere.
Because separate HTSUSA headings provide for the various
articles which comprise this merchandise, we turn to GRI 3(b).
The first Minnie 'N Me Pop Jewelry assortment, qualifies as a set
since: at least two of its constituent articles are classifiable
in different headings; the merchandise consists of items put up
together to meet a particular need, specifically, for a child's
personal adornment; and the set, which is packaged in plastic
affixed to a board, is ready for direct sale without repacking.
The second Minnie 'N Me Pop Jewelry assortment qualifies as
a composite good, in part, because its "components are adapted
one to the other...are mutually complementary and...together they
form a whole which would not normally be offered for sale in
separate parts." See EN (IX) to GRI 3(b).
In both cases, the merchandise is classified by the
component which imparts the essential character. In regard to
the first Pop Jewelry assortment, no one component of the article
imparts essential character. Accordingly, GRI 3(c) directs us to
classify the assortment under the heading which occurs last in
numerical order among those which equally merit consideration.
In this case, between headings 7117, providing for imitation
jewelry, and 9615, providing for combs, hair slides and the like,
the assortment is classifiable in the latter heading, 9615.
In regard to the second Pop Jewelry assortment, the
necklace, locket and bracelet, classifiable within 7117 as
imitation jewelry, provide the essential character. They provide
the greatest bulk, weight, and value and distinguish the
-8-
merchandise as imitation jewelry to be used for adornment. The
comb and mirror are especially designed to be placed within, and
used with, the imitation jewelry. The assortment is classified
in 7117.
HOLDING:
Minnie 'N Me Looking Pretty Sets (Assortments One and Two):
9503.70.8000- Other toys;...Other
toys put up in sets or outfits,...:
Other: Other, dutiable at 6.8
percent ad valorem.
Bathtime Fun Barbie Deep Sea Jewelry Playset:
9503.70.8000- Other toys;...Other
toys put up in sets or outfits,...:
Other: Other, dutiable at 6.8
percent ad valorem.
Minnie 'N Me Pop Jewelry Set (Assortment One):
9615.11.4000- Combs, hair-slides
and the like;...Combs, hair-slides
and the like: Of hard rubber or
plastics: Other: Not set with
imitation pearls or imitation
gemstones, dutiable at 5.3 percent
ad valorem.
Minnie 'N Me Pop Jewelry Set (Assortment Two):
7117.90.5000- Imitation jewelry:
Other: Other: Valued over 20 cents
per dozen pieces or parts, dutiable
at 11 percent ad valorem.
This notice should be considered a modification of Pre-
Entry Classification Ruling 860593 pursuant to 19 CFR
177.9(d)(1). It is not to be applied retroactively to Ruling
860593 (19 CFR 177.9(d)(2)) and will not, therefore, affect past
transactions for the importation of your client's merchandise
under that ruling. However, for the purposes of future
transactions in merchandise of this type, Ruling 860593 will not
be valid precedent. We recognize that pending transactions may
be adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it. If such a situation
arises, your client may, at its discretion, notify this office
-9-
and apply for relief from the binding effects of this decision as
may be warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division