CLA-2 RR:CTF:TCM H250150 EGJ
Port Director
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802
Attn: Valentina Seiden, Import Specialist
Re: Application for Further Review of Protest No. 2704-13-100676: Classification of Two Toy Kitchen Collections
Dear Port Director:
This is in response to Protest 2704-13-100676, dated March 22, 2013, filed by counsel on behalf of Target Stores (Protestant), in response to your classification of two toy kitchen collections under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The first item is the Play Circle Dish Set (the bag collection). Packaged for sale in a clear vinyl bag, the collection includes 33 plastic pieces: one teapot with lid, one sugar bowl with lid, one creamer, four cups, four glasses, four bowls, four plates, four forks, four spoons, four knives, and one serving tray. A picture of the bag collection is provided below:
The second item is the Play Circle Pots & Pans Set (the box collection). Packaged for sale in a molded plastic storage bin, the collection includes 20 plastic pieces: one small saucepan, one large saucepan, one pot with lid, one frying pan, one bowl, one ladle, one long-handled spoon, one big spoon, one small spoon, one small spatula, one large spatula, one pastry wheel, one hand mixer, three cookie cutters, one rolling pin and one salt and pepper shaker set. A picture of the box collection is provided below:
ISSUE:
What is the tariff classification of the bag collection and the box collection under the HTSUS?
LAW AND ANALYSIS:
The instant Protest and Application for Further Review (AFR) covers eight entries of the subject merchandise made between February 1, 2012 and April 23, 2012. The entries liquidated between December 14, 2012 and March 8, 2013. The Protest was timely filed on March 22, 2013. The matter is protestable as a decision on classification. 19 U.S.C. §1514(a)(2). The Protestant’s AFR satisfies application criteria because Protestant alleges that the Port’s classification of the two kitchen collections is inconsistent with two ruling letters and the U.S. Court of International Trade’s decision in Estee Lauder v. United States, 815 F.Supp. 2d 1287, 1294 (Ct. Int’l Trade 2012). 19 C.F.R. § 174.24(a).
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
GRI 3(b) provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
GRI 5 provides as follows:
In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:
(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;
(b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.
* * *
The HTSUS provisions at issue are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914.
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4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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.
* * *
9503 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 kinds; parts and accessories thereof.
Note 4 to Chapter 95 provides as follows:
Subject to the provisions of Note 1 above, heading 9503 applies, inter alia, to articles of this heading combined with one or more items, which cannot be considered as sets under the terms of General Interpretative Rule 3(b), and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
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In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to GRI 3(b) state, in pertinent part, as follows:
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(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 (e.g., in boxes or cases or on boards).
The term therefore covers sets consisting, for example, of different foodstuffs intended to be used together in the preparation of a ready to eat dish or meal.
The ENs to GRI 5 provide as follows:
RULE 5 (a)
(Cases, boxes and similar containers)
(I) This Rule shall be taken to cover only those containers which :
(1) are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended. Some containers are shaped in the form of the article they contain;
(2) are suitable for long term use, i.e., they are designed to have a durability comparable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during transport or storage, for example). These criteria enable them to be distinguished from simple packings;
(3) are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport. Presented separately the containers are classified in their appropriate headings;
(4) are of a kind normally sold with such articles; and
(5) do not give the whole its essential character.
(II) Examples of containers, presented with the articles for which they are intended, which are to be classified by reference to this Rule are:
(1) Jewelry boxes and cases (heading 71.13);
(2) Electric shaver cases (heading 85.10);
(3) Binocular cases, telescope cases (heading 90.05);
(4) Musical instrument cases, boxes and bags (e.g., heading 92.02);
(5) Gun cases (e.g., heading 93.03).
(III) Examples of containers not covered by this Rule are containers such as a silver caddy containing tea, or an ornamental ceramic bowl containing sweets.
RULE 5 (b)
(Packing materials and packing containers)
(IV) This Rule governs the classification of packing materials and packing containers of a kind normally used for packing the goods to which they relate. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use, for example, certain metal drums or containers of iron or steel for compressed or liquefied gas.
(V) This Rule is subject to Rule 5 (a) and, therefore, the classification of cases, boxes and similar containers of the kind mentioned in Rule 5 (a) shall be determined by the application of that Rule.
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It is undisputed that the contents of the bag collection and the box collection are classified as toys of heading 9503, HTSUS. It is also undisputed that the vinyl plastic bag is classified as a bag of heading 4202, HTSUS, and that the plastic storage bin is classifiable as an article of plastics under heading 3926, HTSUS. The question posed by the Protestant is whether the bag and the box can be classified together with the toys under heading 9503, HTSUS.
The Protestant asserts that the bag collection and the box collection each constitute a retail set under GRI 3(b). We note that in order to be classified as a GRI 3(b) set, the subject merchandise must meet three requirements. First, the merchandise must consist of two or more articles which are prima facie classifiable in different headings. Second, the merchandise must consist of articles put up together to meet a particular need or to carry out a specific activity. Finally, the merchandise must be suitable for direct sale to users without repacking. See Estee Lauder v. United States, 815 F.Supp. 2d 1287, 1294 (Ct. Int’l Trade 2012)(citing to the ENs to GRI 3(b)).
We agree with the Protestant that both collections meet the first and the third criteria. The outstanding issue is whether the kitchen toys and their containers are put up together to meet a particular need or to carry out a specific activity. The Protestant argues that these two goods are put up together for the specific activity of imaginative play. Specifically, the bag collection is to play tea party and the box collection is to play at cooking in the kitchen. The Protestant points out that the vinyl bag and the plastic bin hold the toys when they are not in use. Also, the Protestant notes that the consumer can use the containers to carry the toys from place to place. Therefore, the Protestant asserts that the containers should be classified together with the toy kitchen articles as a retail set pursuant to GRI 3(b).
For support, the Protestant cites to New York Ruling Letter (NY) F85106, dated April 20, 2000, and NY I83368, dated June 28, 2002. Both of these rulings classified toy picnic sets. Each set consisted of toy utensils packaged together for retail sale in a child’s backpack. In those rulings, we classified the toy utensils and the backpacks together under heading 9503, HTSUS, by application of GRI 3(b).
We take the view that the aforementioned rulings are distinguishable from the instant kitchen collections. When a child pretends to have a picnic, part of the imaginative play involves moving the food and the utensils to an outdoor location. Therefore, the backpack contributes to the specific activity of playing picnic, because the backpack enables the child to carry the picnic set outdoors or to another location. However, hosting a tea party or cooking in the kitchen does not involve moving the utensils to a different location. Therefore, we disagree that the instant containers contribute to the imaginative play of hosting a tea party or cooking in the kitchen.
In addition, the Protestant cites to the Court of International Trade’s (CIT) decision in Estee Lauder v. United States. 815 F.Supp. 2d 1287 (Estee Lauder). In Estee Lauder, the CIT examined a gold-colored retail carton which contained lipstick, a lip pencil, a lip gloss, an eye pencil, mascara, eye shadow, nail lacquer, blush, and an applicator packaged together inside of a cosmetic case. Id. at 1290 -1291. The gold-colored carton also contained cosmetic brushes packaged inside of a brush case. Id. The CIT noted that the purchaser would most likely store the brush case inside of the cosmetic case after purchase. Id. The CIT determined that the gold-colored carton and its contents constituted a GRI 3(b) retail set which was put up together for the specific activity of applying makeup. Id. at 1295.
We note that the instant toy kitchen collections are distinguishable from the merchandise in Estee Lauder. 815 F.Supp. 2d 1287. In that decision, it was the contents of the carton which met the second criterion for a GRI 3(b) set. The contents of the carton were put up together for the specific activity of applying makeup. The outer container did not contribute to the specific activity of applying makeup. Id. at 1295. According to the CIT in Estee Lauder, outer containers should be classified together with the rest of the articles in the set because the third criterion and the examples set forth in the ENs indicate that GRI 3(b) retail sets must be packaged together. Id. at 1297.
Unlike the contents of the carton in Estee Lauder, the contents of both kitchen collections are all prima facie classifiable as toys of heading 9503, HTSUS. Therefore, the contents of the bag and box collections fail to meet the first criterion of a GRI 3(b) retail set. In addition, we take the view that the vinyl bag and the plastic bin do not contribute to the specific activity of playing tea party or playing at cooking. For all of these reasons, the two kitchen collections cannot be classified together as GRI 3(b) retail sets.
Instead, we note that the vinyl bag in the bag collection could be considered a disposable packing container described by GRI 5(b). GRI 5(b) states that “packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods.” GRI 5(b) further states that it is not binding “when such packing materials or packing containers are clearly suitable for repetitive use.” Therefore, the vinyl bag can be classified together with the toy kitchen articles so long as it is normal packaging for toys and it is not suitable for repetitive use.
Applying GRI 5(b) to the instant merchandise, we must determine whether a vinyl bag is normal packaging for toy kitchen articles. After examining a number of retailers’ websites, we have observed that kitchen toys are frequently packaged for sale in vinyl bags. See, e.g. Kitchen Toys Fun Cutting Fruits and Vegetables available at www.amazon.com and Gi-Go Toy 120 Piece Play Food available at www.walmart.com. Moreover, the vinyl bag looks cheaply made and disposable. The consumer will likely throw away the bag and store the tea party set in a larger toy box or with other toy kitchen articles. For all of these reasons, we find that the vinyl bag is unsuitable for repetitive use. As such, we find that the toy kitchen articles and the vinyl bag should be classified together as toys of heading 9503, HTSUS, by applications of GIRs 1 and 5(b).
Next, we turn to the box collection. The plastic bin is clearly suitable for repetitive use. Therefore, it cannot be classified together with the toy kitchen articles by application of GRI 5(b). However, Note 4 to Chapter 95 states that heading 9503, HTSUS, includes articles of that heading combined with one or more items, which cannot be considered as sets under the terms of General Interpretative Rule 3(b), and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
Applying Note 4 to Chapter 95 to the box collection, we note that the plastic bin is packaged together with the toy kitchen articles for retail sale. Although the plastic bin is classified in heading 4202, HTSUS, and the kitchen toys are classified in heading 9503, HTSUS, we do not consider it to be a set of GRI 3(b). However, we take the view that the combination of the plastic storage bin and the toy kitchen articles have the essential character of toys. For all of these reasons, the plastic storage bin and the toy kitchen articles can be classified together under heading 9503, HTSUS, by application of Note 4 to Chapter 95.
HOLDING:
By application of GRIs 1 and 5(b), the vinyl bag and the toy kitchen articles in the bag collection are classified together under subheading 9503.00.00, HTSUS, which provides for “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 kinds; parts and accessories thereof.” The 2012 column one, general rate of duty is free. Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed, you are instructed to ALLOW the protest with regard to the bag collection.
By application of GRI 1 (Note 4 to Chapter 95), the plastic bin and the toy kitchen articles in the box collection are classified together under subheading 9503.00.00, HTSUS, which provides for “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 kinds; parts and accessories thereof.” The 2012 column one, general rate of duty is free. Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed, you are instructed to ALLOW the protest with regard to the box collection.
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.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division