CLA 2 RR:CR:GC 961840 JGB
Port Director
U.S. Customs Service
Los Angeles-Long Beach Seaport
300 S. Ferry St.
Terminal Island, CA 90731
RE: Protest 2704 98 100188; Jurassic Park? Dinosaur Bottle Toppers; Not Other Toys; Plastic Lids of Heading 3923; Ornamental Articles of Plastics of Heading 3926
Dear Sir:
This is a decision on Protest 2704 98 100188 against your decision in the classification of merchandise entered in 1997. The entries were liquidated on March 20, 1998, and the protest timely filed on April 1, 1998. Our decision follows:
FACTS:
The merchandise at issue in this protest, manufactured in China, consists of two pieces. One is a plastic lid that is designed to screw on the top of a beverage container. The lid is approximately 3-1/2 inches in diameter and 5/8ths inches deep. The lid had a hole in its center to accommodate a drinking straw. The other piece is the topper which fits over the lid and also has a hole to accommodate the drinking straw. The topper appears to be made of a semi-pliable hard vinyl plastic molded into the fanciful form of the head and neck of a prehistoric animal featured in the motion picture Jurassic Park. The figure, resting on a base of the same material, stands about 5 inches high and appears to lunge over what would be the boundaries of the cylinder of the beverage container. The figure is intricately decorated with bright colors and is posed with an open mouth displaying sets of white teeth. It is painted to show glaring eyes, suggesting that it is about to pounce and devour something. Dragon-like forearms are molded into the sides of the base and wrap around it to present a vivid lifelike appearance. At the base of the topper at the rear of the head in large contrasting letters is the trademarked legend “JURASSIC PARK.”
The protestant entered the merchandise under subheading 3924.10.50, Harmonized Tariff Schedule of the United States (HTSUS), as other tableware and kitchenware of plastics.
The entries were liquidated under subheading 3926.40.00, HTSUS, as other articles of plastics, statuettes and other ornamental articles.
The protestant now claims that the articles are classified in subheading 9503.49.0025, HTSUS, as other toys, toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof, other than stuffed.
ISSUE:
Whether the toppers and lids are classified within heading 3923, as lids of plastics; within heading 3924, as other tableware and kitchenware of plastics; within heading 3926, as other ornamental articles of plastics; or within heading 9503, as other toys.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. 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 GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.
As the imported article consists of two pieces, the threaded lid and the molded vinyl portion (the dinosaur head) that fits over the lid, the two pieces are not described by a single heading as provided by GRI 1. GRI 2 is not relevant; therefore, consideration must be given to whether the pieces are a set or composite good under GRI 3(a). They do not form a set in that they are clearly, in their condition as imported, not put up for retail sale. GRI 3(a) provides, in pertinent part, that “when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods ..., 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.” The EN to GRI 3(a) states:
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. (Emphasis added.)
In the instant case, the two parts could not be considered as composite goods because, contrary to the rule, there is no reason why the goods would not be offered for sale separately. The lid is a common item that performs its function without the addition of the topper. The topper functions as a decorative article apart from the use as an adjunct to beverage consumption. Inasmuch as the two parts are not considered a composite good for tariff purposes, they must be classified separately.
The HTSUS headings under consideration are as follows:
Heading 3923 provides for “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics.” The relevant subheading is 3923.50, which provides for “stoppers, lids, caps and other closures.”
Heading 3924 provides for “Tableware, kitchenware, other household articles and toilet articles of plastics.” The relevant subheading is 3924.10.50, which provides for “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other.”
Heading 3926 provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914.” The relevant subheading is 3926.40, which provides for “Statuettes and other ornamental articles.”
Heading 9503 provides for “Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.” The relevant subheading is 9503.49.0025, which provides for “Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other, Toys.”
Turning first to the protestant’s claim of classification in heading 9503, HTSUS, the ENs to Chapter 95 indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." It is 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), HTSUS. Customs defines principal use as that use which exceeds each other single use of the article.
A close examination of the topper article leads to the conclusion that it is not designed for amusement and is therefore not a toy. The article functions minimally to attract the user to drink the beverage through the straw protruding from the back of the dinosaur head. Therefore, it is not solely that there is some functionality of the article which deprives it of a potential toy classification. It is, rather, that there is no play value associated with this dinosaur head. It is interesting to look at and would have its longest usefulness, not on top of a beverage container at a theme park, but rather kept on a shelf or display case in plain view as a souvenir of the visit to the theme park. The base with the prominently lettered “Jurassic Park” is reminiscent of the motion picture in that the head depicts one of the “characters” in the motion picture. It is our conclusion that the topper article will not be played with because it is principally designed to be looked at. We note, by contrast, that there would be no doubt that a full-bodied dinosaur would be a plaything and would be classified in the claimed subheading for toys. Because this thing is not designed to be played with, it is not principally designed to amuse and must be classified in another provision.
The classification of the lid portion is in heading 3923, HTSUS, in the eo nomine provision for lids. Under GRI 3(a), the lid provision takes precedence over heading 3926, HTSUS, in that it is the more specific provision of the two. The applicable subheading is 3923.50, HTSUS. The language of heading 3923 suggests that lids, among other named articles, are classified there, without regard to whether they are closures for containers that are “for the conveyance or packing of goods.” In that respect, it would be immaterial to the classification of the lid whether it fitted on a container used repeatedly to transport beverages or for commercial beverage transport or sale.
The terms of heading 3924, pertaining to tableware, kitchenware, other household articles and toilet articles of plastics do not describe either portion of the merchandise.
Although the lid fits over a beverage container, the container would not be of the type used principally in households for serving beverages.
Heading 3926, HTSUS, as the residual provision for plastics, could describe most articles of plastics not elsewhere specified or included. Since the topper portion is not described by the toys provision, it falls by default into heading 3926. It is specifically provided for in subheading 3926.40, HTSUS, which provides for plastic “Statuettes and other ornamental articles.”
HOLDING:
The protest should be DENIED. The entries should be reliquidated according to the classification as indicated herein.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of
the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director,
Commercial Rulings Division