CLA-2 RR:CR:GC 959858 MMC
Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731
RE: Application for Further Review of Protest No.2704-96-100566;
"Pocahontas Beauty Basket"
Dear Port Director:
The following is our response to the application for further
review of protest 2704-96-100566 concerning your classification
decision regarding an article described as a "Pocahontas Beauty
Basket" under the Harmonized Tariff Schedule of the United States
(HTS). Protestant's submission indicates that descriptive
literature as well as a sample of the subject article were
submitted for our review.
FACTS:
The subject article is described as a "Pocahontas Beauty
Basket." It consists of an orange and blue plastic case, pink
and green face paint with applicator, a plastic choker, arm cuff
, bracelet and hair comb. The basket has a woven pattern molded
into it. On its outside center it has a blue circle with a
molded Pocahontas form. On the inside, the blue circle has a
mirror. The face paint is housed in a plastic purple tube which
has molded into it scenes from the Disney movie "Pocahontas."
The face paint is applied by a plastic pink sparkley "magic wand"
applicator. All of the jewelry as well as the comb have
interchangeable sparkley plastic "shells" as accessories.
Protestant entered the beauty case under subheading
4202.12.2020, HTS, the jewelry with shell applications under
subheading 7117.90.5500, HTS, the plastic hair comb under
subheading 9615.11.1000, HTS, and the face paints under
subheading 9801.00.1098, HTS. Protestant asserts that all the
articles except for the face paints are classifiable under
subheading 9503.70.0030, HTS. Protestant asserts that the face
paints are classifiable under subheading 9801.00.1098, HTS.
The entries, made in August and September of 1995, were
liquidated on November 24, 1995, December 1, 1995, December 8,
1995, and December 15, 1995. A protest was timely filed for all
entries on February 21, 1996. The headings and subheadings under
consideration are as follows:
4202 Trunks, suitcases, vanity cases, attache cases, briefcases,
school satchels, spectacle cases, binocular cases, camera
cases, musical instrument cases, gun cases, holsters and
similar containers; traveling bags, toiletry bags, knapsacks
and backpacks, handbags, shopping bags, wallets, purses, map
cases, cigarette cases, tobacco pouches, tool bags, sports
bags, bottle cases, jewelry boxes, powder cases, cutlery
cases and similar containers, of leather or of composition
leather, of sheeting of plastics, of textile materials, of
vulcanized fiber or of paperboard, or wholly or mainly
covered with such materials or with paper
7117 Imitation jewelry
9503 Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all
kinds; parts and accessories thereof
9615 Combs, hair-slides and the like; hairpins, curling pins,
curling grips, hair-curlers and the like, other than those
of heading 8516, and parts thereof
9801.00.10 Products of the United States when returned after
having been exported, without having been advanced
in value or improved in condition by any process
of manufacture or other means while abroad
ISSUE:
Whether the Pocahontas Beauty Basket is classifiable as a
toy set, GRI 3 set or whether the components are classifiable
separately.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTS. 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. 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 HTS by offering guidance in
understanding the scope of the headings and GRIs.
Although the term "toy," in general, is not specifically
defined in the tariff, the ENs to Chapter 95, HTS, 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), HTS.
The present article, "Pocahontas Beauty Basket," contains
several distinct components which, when viewed as a whole, may
render the article classifiable as a toy. The ENs 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)."
In order to achieve clarity and consistency in the
classification of toy sets and outfits, the Harmonized System
Committee of the Customs Cooperation Council amended the EN at
its 14th Session by providing the following subheading 9503.70
Explanatory Note:
Subject to substantiated classification in heading 95.03 and
for the purpose of this subheading:
i) "Sets" are two or more different types of articles
(principally for amusement), put up in the same packing
for retail sale without repacking. Simple accessories
or objects of minor importance intended to facilitate
the use of the articles may also be included.
ii) "Outfits" are two or more different articles put up
in the same packing for retail sale without repacking,
specific to a particular type of recreation, work,
person or profession.
Doc. 38.960, Annex G/12 and L/19 (HSC/14/Nov. 94).
While not legally binding, we find this EN provides useful
guidance. It indicates that the potential set/outfit, in its
totality, is to be considered when determining whether it is used
principally for amusement. The manner in which the merchandise
is put up together, or packaged, for retail sale as well as the
marketing, advertising, and channels of trade of the potential
set as a whole is probative of its classification as a toy set of
subheading 9503.70, HTS. Further, when considering if a
particular article within the potential set is used principally
for amusement, emphasis must be placed on whether that article
amuses when viewed in its context within the entire retail packed
set. Hence, a "disparate" article of major importance,
demonstrating a minor, if any, connection to the set in its
totality, would cause the merchandise to fail as a set of this
subheading.
For a further discussion on subheading 9503.70, HTS, see:
Headquarters Ruling Letters (HRL) 950700 dated August 25, 1993,
which classified "Minne'n Me Looking Pretty Sets"; 953470 dated
July 9, 1993, which classified a "Light-Up Dream House"; 954559
dated February 16, 1994, which classified a "Pretty Bride Dress-Up Set"; 954690 dated September 5, 1995, which classified a
"Petite Miss Fashion Model Set"; 956387 dated October 3, 1995,
which classified a "Bag of Bath Toys"; 956974 dated November 23,
1994, which classified a "Ball Pit Mountain"; 957829 dated July
3, 1996, which classified the "Fantastic Fingernails Nail
Decorating Set"; and 958345 dated March 11, 1996, which
classified a "Pocket Comics Set."
In applying the relevant EN, consistent with the language
provided in the HTS, at both the heading level providing for
"other toys" and at the subheading level providing for "other
toys put up in sets or outfits," it is our position that the
instant merchandise is classifiable within subheading 9503.70.
In this case, the manner in which the merchandise, in its
totality, is retail packed indicates that it is principally used
for amusement. The packing describes and presents the
merchandise as a "beauty basket." In particular, the combination
includes components which are all intended to facilitate the
child-consumer's role play as the character "Pocahontas" from the
Disney movie or to "dress-up."
The advertising on the package as well as the submitted
marketing focus group report confirms the use of the "Beauty
Basket" as a toy. In this regard, the package states:
Pocahontas and her friends walked in beauty. They adorned
themselves with treasures from nature like shells from the
sea. For special times, they painted their faces with
colors from the earth. Now you can be as beautiful as
Pocahontas. All the treasures and face paint you need are
inside the Basket of Beauty.
Wear a tattoo' armband on your arm and a shell' necklace
just like Pocahontas, inspired by Disney's animated film,
Pocahontas.
Paint yourself like Pocahontas. It's easy with the color
wand. Water-based and non-toxic paint.
It's fun to snap mix n match glitter-shells onto necklace,
comb or bracelet.
Everything fits in the carry-along basket!
Additionally, a marketing Focus Group Report submitted by counsel
demonstrates that the merchandise, retail packed in this
particular manner, is considered a toy by the ultimate consumer.
The report states, in pertinent part, that:
Mothers were very positive about the Pocahontas Jewelry
Basket on account of their perception of its uniqueness and
play value. Specifically, most moms very much liked the
face paint because of the creativity and fun it allows, and
its appropriateness to the Indian theme. Mothers also felt
that the Indian theme differentiates this article from
competitive vanities.
In short, the evidence presented indicates that the "Pocahontas
Beauty Basket" will be principally used as a role playing device
to "pretend" one is an Indian princess or Pocahontas herself. As
such it is classifiable under subheading 9503.70.0030, HTS, which
provides for "Other toys; reduced-size ("scale") models and
similar recreational models, working or not; puzzles of all
kinds; parts and accessories thereof: Other toys, put up in sets
or outfits, and parts and accessories thereof: Other." As the
article is classifiable as a set, there is no need to classify
the face paint under heading 9801, HTS.
HOLDING:
The "Pocahontas Beauty Basket is classifiable under
subheading 9503.70.0030, HTS, which provides for "Other toys;
reduced-size ("scale") models and similar recreational models,
working or not; puzzles of all kinds; parts and accessories
thereof: Other toys, put up in sets or outfits, and parts and
accessories thereof: Other." The 1995 column one rate was free.
The protest should be ALLOWED in full.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this decision, the Office of Regulations
and Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels. A copy of this
decision should be attached to the Customs Form 19, Notice of
Action on the protest, to be returned to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division