CLA-2 RR:TC:TE 957705 ASM
Mr. Rudy R. Cole
Port Director
U.S Customs Service
9 North Grand Ave.
Nogales, AZ 85621
RE: Request for Internal Advice for "My Size Barbie" and "My Size Bride Barbie" Dolls
Dear Mr. Cole:
This letter is in response to the Internal Advice request by your office which was initiated by Richard Shostak and Bruce Shulman of Stein, Shostak, Shostak and O’Hara, on behalf of Mattel, Inc. Specifically, Mattel, Inc. is seeking information regarding the tariff classification and NAFTA eligibility of products identified as "My Size Barbie" (Item No. 2517) and "My Size Bride Barbie" (Item Nos. 12052 and 12053). At this time, our response is limited to the tariff classification of the aforementioned products. The information regarding NAFTA eligibility will be separately addressed by the Value Branch, Office of Regulations and Rulings, upon receipt of all the necessary documentation.
FACTS:
The items under consideration, 2517, 12052, and 12053, are all versions of "My Size Barbie" dolls. According to the description provided, the dolls are three feet high, stand erect, and are assembled in Mexico from arms, heads, legs and torsos of Mexican or U.S. origin and hair of Italian origin. After assembly, additional components, such as dresses (imported from China) and jewelry, nail polish and lip gloss, are retail packaged with these dolls and they are exported to the United States.
In New York Ruling Letter (NYRL) 873318, dated May 5, 1992, it was determined that the finished retail package of these products, upon importation to the U.S., should be classified under one tariff number as "Dolls representing only human beings and parts and accessories thereof," subheading 9502.10.8000 (now 9502.10.0060), Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The importer now contends that the outfits worn by the dolls and imported into Mexico from China, are costumes classifiable in Chapters 61 or 62 of the HTSUSA.
ISSUE:
The essential issue in this case is whether Chinese-origin components (body suit, skirt, sleeves, veil, and slippers) imported into Mexico are classifiable in chapter 61, HTSUSA, as fancy dress of textiles, or in chapter 95, HTSUSA, as doll accessories (garments). It is then necessary to determine the correct tariff classification of the products, "My Size Barbie" (Item No. 2517), and "My Size Bride Barbie" (Item Nos. 12052, and 12053), as imported to the U.S. for retail sale.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). 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 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 (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 HTSUSA by offering guidance in understanding the scope of the headings and GRI's.
Note 1(e) to chapter 95, HTSUSA, states that "This chapter does not cover: Sports clothing or fancy dress, of textiles, of chapter 61 or 62." Note 3 to the chapter states that "Subject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles."
Additional U.S. Rule of Interpretation 1(a) states that "in the absence of special language or context which otherwise requires--"
A tariff classification controlled by use (other than actual
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.
The importer argues that in their condition as imported into Mexico, the "My Size Barbie" and "My Size Bride Barbie" outfits are classifiable as "fancy dress" in either Chapter 61 or 62, HTSUSA, because they are costumes that can also be worn by children and are well-constructed and intended for repetitive and extended use. However, it is clear from the record that at the time the items are imported into Mexico, they are not intended for use in Mexico as costumes, or garments for little girls, but only as doll accessories to be packaged and principally used with the dolls to which they will be assembled for subsequent exportation to the United States.
In Headquarters Ruling Letter (HQ) 950695, dated July 21, 1992, the issue involved the classification of a musical mechanism sold with a doll which was designed to incorporate the musical unit in its body and play a lullaby when activated. In that ruling it was stated that an accessory is defined as a thing of secondary importance; an object or device not essential in itself, but adding to the convenience or effectiveness of something else. The ruling further states that accessories may widen the range of uses of the main article. In the subject case, the thirty six inch "Barbie" doll is very clearly the main article in the retail packaged set. While the textile articles packaged with the doll are advertised for use by the child as well as the doll, these items are still of secondary to the doll as accessories because they primarily serve to clothe and enhance the retail packaged doll.
In a supplemental written submission, the importer has asserted that in their condition as imported into Mexico, the "My Size Barbie" and "My Size Bride Barbie" costumes are clearly well constructed and intended for repetitive and extended use and that there is now a uniform and established practice of classifying costumes, other than those which are cheaply constructed from flimsy materials, as fancy dress of textiles in either Ch. 61 or 62, HTSUSA. It is further argued that while the costumes may be used and sold with dolls, and their use as doll clothing may even be their principal use, this is irrelevant to classification because Customs has issued numerous rulings holding that bulk shipments of such merchandise must be classified in its condition as imported rather than as the merchandise into which it is later packaged, transformed, manufactured. In addition, it is stated that the Italian "hair" and jewelry are also classified outside Ch. 95, HTSUSA.
Although the importer argues that the doll garments are merely shipped in bulk (separately from the dolls and accessories) into Mexico, it is the condition as imported into the U.S. that governs the classification of these items, under the HTSUSA. Inasmuch as the product imported to the U.S. contains items that may be classified under more than one heading, it is not classifiable pursuant to GRI 1. Thus, we would not consider whether or not the textile components are separately classifiable under Ch. 62, HTSUSA, and excluded from Ch. 95 as "... fancy dress of textiles, of chapter 61 or 62;... " (Ch. 95, Note 1(e), HTSUSA).
GRI 2 is not applicable to this merchandise. GRI 3(a) states that the heading which provides the most specific description is to be preferred. However, in this instance, classification is governed by GRI 3(b) because the textile components, jewelry, nail polish, and lip gloss, are retail packaged as accessories with the doll.
GRI 3(b) is applicable when goods are, prima facie, classifiable under two or more headings and have been put up in sets for retail sale. The EN’s state in Note (X) to Rule 3(b) that the term "goods put up in sets for retail sale" means goods which:
(a) consist of at least two different articles which are prima facie classifiable in different headings ...;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking ...
GRI 3(b) states that the goods "shall be classified as if they consisted of the material or component which gives them their essential character." In the subject case, the doll provides the essential character of the set. As such, the product, as retail packaged and containing the doll, textile components, jewelry, nail polish, and lip gloss, is classified pursuant to GRI 3(b) as a doll set, with the doll imparting the essential character.
Although the textile articles manufactured in China and imported into Mexico may be worn by little girls, they are designed for use principally with the dolls to which they will be assembled. Therefore, the textile components (body suit, skirt, sleeves, veil, and slippers) would be classifiable with the doll in 9502.10
Finally, we do not find evidence of an established and uniform practice in this case. The rulings cited by the importer can be distinguished because they do not involve the classification of sets where dolls and clothing are packaged together with accessories for principal use with a doll. Furthermore, a Customs Ruling does not, by itself, create a practice unless it is published in full in the Customs Bulletin or there is a statement in the ruling that a practice exists. Although evidence has been submitted which demonstrates that the doll accessories in question can also be worn by a small child, for the reasons set out below,these items belong to a class or kind of goods which are principally used for the purpose of adorning the dolls with which they are packaged and entered.
We are constrained, in this instance, to consider the manner of packaging and of sale at both the wholesale and retail levels as being determinative of the class or kind of goods to which the accessories belong. The doll accessories presented here are not of the class or kind of goods principally used as fancy dress of chapter 62 and are, therefore, not exempted by chapter 95, Note 1(e) from classification under heading 9502, HTSUSA.
HOLDING:
Upon importation into the U.S., the retail packaged products contained in sets identified as "My Size Barbie" (Item No. 2517), and "My Size Bride Barbie" (Item Nos. 12052 and 12053), are properly classifiable as sets under one tariff number within subheading 9502.10.0060, HTSUSA, which provides for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed; Other." The duty is free at the general column one rate.
Sincerely,
John Durant, Director
Commercial Rulings Division