CLA-2 OT:RR:CTF:TCM H239752 GA
Ms. Christina Yun
MZ Berger & Company
29-76 Northern Blvd, 4th Floor
Long Island City, NY 11101
RE: Modification of HQ H040737; Classification of McQueen car and cup
Dear Ms. Yun:
This letter concerns Headquarters Ruling Letter (HQ) H040737, dated July 23, 2009, issued to you regarding the classification of a plastic McQueen car and cup, under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection (CBP) classified the McQueen car in subheading 3924.10.40, HTSUS, which provides for: “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Tableware and kitchenware: Other.” The McQueen cup was classified in subheading 3924.90.56, HTSUS, which provides for: “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” CBP has reviewed HQ H040737 and found an error in the holding. We found that the subheadings for the classification of the McQueen car and cup were reversed contrary to the proper classification determination. We hereby modify HQ H040737 to reflect that the McQueen car is classified in subheading 3924.90.56, HTSUS, and the cup is classified in subheading 3924.10.40, HTSUS.
On May 20, 2015, pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin Vol. 49, No. 20. No comments were received in response to this notice.
FACTS:
The merchandise at issue was a McQueen car and cup. The McQueen car is a plastic car in the likeness of the Disney/Pixar “Cars” character Lighting McQueen. It features a circular depression in the rear portion of the car behind the roof in which to place the plastic cup. The cup features a sticker which states “The Oil Pan Open.” They are packaged together with a plastic tool holder, plastic wrench, screwdriver, pliers and body wash. The box in which the items are packaged identifies the merchandise as the “Cars Tub Time Pit Stop.” The plastic tool holder, plastic wrench, screwdriver, pliers and body wash were previously classified in NY N029461 and were determined not to be a set for classification purposes.
ISSUE:
Whether the McQueen car and cup are classified in heading 9503, HTSUS, as toys or in heading 3924, HTSUS, as “tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics.”
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order. The applicable HTSUS provisions at issue are as follows:
9503.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kind;
parts and accessories.
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastic:
3924.10 Tableware and kitchenware:
3924.90 Other:
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs), though not dispositive or legally binding, provide commentary on the scope of each heading of the heading HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 3924, HTSUS, provides in relevant part:
The heading also covers cups (without handles) for table or toilet use, not having the character of containers for the packing or conveyance of goods, whether or not sometimes used for such purposes. It excludes, however, cups without handles having the character of containers used for the packing or conveyance of goods (heading 39.23).
You contend that both the McQueen car and cup are toys and that the McQueen car is marketed as a toy car with a trunk for holding a number of objects to play during and after bath time. You state there is no indication that the car would be used for or associated with drinking and the cup is not sold or marketed as a drinking cup or a rinse cup.
The term “toy” is not defined in the HTSUS. However, the General EN for Chapter 95, HTSUS, states that the “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” The U.S. Court of International Trade (CIT) constructs heading 9503, HTSUS, as a “principal use” provision, insofar as it pertains to “toys.” See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Court of International Trade 2000). Thus, to be a toy, the “character of amusement involved [is] that derived from an item which is essentially a plaything.” Wilson’s Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967). For articles governed by principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such 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.” In other words, the article’s principal use at the time of importation determines whether it is classifiable within a particular class of or kind.
While Additional U.S. Rule of Interpretation 1(a), provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the CIT has provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). For articles that are both amusing and functional, we look to Ideal Toy Corp. v. United States, 78 Cust. Ct. 28 (1977), in which the court stated that “when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement.” That is, not all merchandise that provides amusement is properly classified in a toy provision.
In this instance, while the McQueen car and rinse cup may be amusing, the articles are a functional cup holder and cup. The rinse cup is designed to fit into the circular depression at the back of the McQueen car. As such, we find that their amusing quality is incidental to their utilitarian purpose and that they are not classifiable in heading 9503, HTSUS. Heading 3924, HTSUS, is organized into categories followed by a general phrase “other household articles.” “When a list of items is followed by a general word or phrase, the rule of ejusdem generis is used to determine the scope of the general word or phrase.” Avenues in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed Cir. 1999). In classification cases, ejusdem generis requires that … the subject merchandise must possess the same essential characteristics or purposes that unite the listed examples proceeding the general term.” Id. Under a ejusdem generis analysis, we “must consider the common characteristics or unifying purpose of the listed exemplars in a heading as well as consider the specific primary purpose of the imported merchandise.” Id. “[C]lassification … under ejusdem generis is appropriate only if the imported merchandise shares the characteristics or purpose and does not have a more specific primary purpose that is consistent with the listed exemplars.” Id.
The essential characteristics and purpose of the categories of goods listed in heading 3924, HTSUS, is to store or contain food and beverages. See SGI, Incorporated v. United States, 122 F.3d 1468 (Fed Cir. 1997). Further, the McQueen car and cup are ejusdem generis with those articles cited in the EN to heading 3924, HTSUS, as exemplars of tableware and kitchenware insofar as the cup is principally classified in heading, 3924, HTSUS.
HOLDING:
Pursuant to GRI 1, we find the McQueen car and cup are classified in heading 3924, HTSUS. The McQueen cup is classified in subheading 3924.10.40, HTSUS, which provides for: “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Tableware and kitchenware: Other.” The column one, general rate of duty is 3.4 percent ad valorem. The McQueen car is properly classified in subheading 3924.90.56, HTSUS, which provides for: “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” The column one, general rate of duty is 3.4 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ H040737, dated July 23, 2009, is hereby MODIFIED.
In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division