Customs Ruling HQ H337372 - Request for Further Review of Protest No. 3002-22-104032; Tariff classification of various miniature backpacks, miniature novelty items, and miniature utility items from China.

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HQ H337372
Jul 26, 2024

Type : Classification • HTSUS : 3926.10.00; 3926.90.99; 4202.32.10; 4820.10.20; 4911.91.40; 7616.99.51; 8214.20.30; 9017.80.00; 9503.00.00; 9603.29.40; 9608.10.00; 9609.10.00; 9615.11.50
Related: 967798; 963638; 965285; H318707; H070735; H300680; H250150; H315362; H251116; H149977; H085715; H037544; H305441; N295731; N244713; N330960; N273080; N329026; N302858; N298628

OT:RR:CTF:CPMMA H337372 NAH

8214.20.30; 9017.80.00; 9503.00.00; 9603.29.40; 9608.10.00; 9609.10.00;
9615.11.50

Center Director
Consumer Products and Mass Merchandising
Center of Excellence and Expertise
U.S. Customs and Border Protection

Attn: Lydia Jimenez, Import Specialist

RE: Request for Further Review of Protest No. 3002-22-104032; Tariff classification of various miniature backpacks, miniature novelty items, and miniature utility items from China.

Dear Center Director,

This is in reply to the Application for Further Review ("AFR") of Protest No. 3002-22-104032, filed on September 14, 2022, by George R. Tuttle, III, on behalf of Moose Toys Pty Ltd. ("Protestant"), contesting U.S. Customs and Border Protection's ("CBP") classification of various products from Protestant's "Real Littles" product line under the Harmonized Tariff Schedule of the United States ("HTSUS").

The subject merchandise consists of stylized carry cases with miniaturized items intended to be contained within. The majority of the carry cases take the form of miniature backpacks, and the contained accessories range from novelty items to miniature utility items. The merchandise arrived in 32 entries at the Port of Tacoma, WA, between December 15, 2020, and October 5, 2021. The 32 entries liquidated on March 18, 2022, under various subheadings that describe each particular item. The subheadings include: 3304.99.5000, HTSUSA ("Annotated"); 3926.10.0000, HTSUSA; 3926.90.9985, HTSUSA; 4202.32.1000, HTSUSA; 4202.32.9300, HTSUSA; 4817.20.4000, HTSUSA; 4820.10.2020, HTSUSA; 4820.10.2060, HTSUSA; 4820.10.4000, HTSUSA; 4902.90.2060, HTSUSA; 4911.91.4040, HTSUSA; 6307.90.9891, HTSUSA; 6805.20.0000, HTSUSA; 8301.10.8000, HTSUSA; 9017.80.000, HTSUSA; 9403.20.0081, HTSUSA; 9503.00.0073, HTSUSA; 9603.29.4010, HTSUSA; 9603.29.4090, HTSUSA; 9608.10.0000, HTSUSA; 9608.20.0000, HTSUSA; and 9609.10.0000, HTSUSA. Protestant asserts that the containers and their contents should be classified under heading 9503, HTSUS, and specifically 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."

FACTS:

The products at issue are the individual components packaged in various themed groupings of the "Real Littles Backpack Collection" and the "Real Littles Handbag Collection" brands. The individual components are packaged in a see-through plastic container measuring roughly 3" x 3" x 1.5". Generally, the largest component in each grouping, the miniature handbags and backpacks, measure around 3" x 3" x 1.5". The miniature backpacks and bags are composed of plastic sheeting that is reinforced with a textile backing. The components are packaged together in the following groupings:

. SKU Code 2538 - Minnie Mouse: The grouping is centered around a pink, miniature locker. The locker is accompanied by a miniature purple shag rug; a miniature mirror; a hangable, pink replica head of "Minnie Mouse"; various small stickers for placing in and on the locker; "wallpaper" depicting Minnie and Mickey Mouse for placing into the locker; and sticky notes. . SKU Code 25400 - Raya: The grouping is centered around a theme of Disney's "Raya and The Dragon." The grouping includes a miniature backpack that is covered in green, white, and pink synthetic fibers and metallic accents. The miniature backpack is accompanied by a small pen with green and white synthetic fibers on the end[1]; a carabiner clip;[2] themed post cards;[3] themed sticky notes;[4] a miniature, plastic, themed plastic, zip-lock pen bag;[5] a miniature themed notebook;[6] and a collection of small, themed stickers. . SKU Code 25400 - Tinker Bell: The grouping is centered around a "Tinker Bell" theme. The grouping includes a miniature backpack that is white with gold details in predominantly covered in gold fairy/butterfly wings. The miniature backpack is accompanied by a small gold/yellow and white pen; a carabiner clip; themed miniature post cards; themed sticky notes; a miniature themed notebook; a collection of small, themed stickers; and a plastic green and white slipper with a gold tie for attaching the slipper to the miniature backpack. . SKU Code 25400 - The Little Mermaid: The grouping is centered around a Disney's "Little Mermaid" theme. The grouping includes a miniature backpack with a purple, pink, and blue, metallic theme and stitch work depicting a scene from Disney's The Little Mermaid. The miniature backpack is accompanied by a small gold/yellow and purple pen; a carabiner clip; themed miniature post cards; themed sticky notes; a themed miniature notebook; and a collection of themed stickers. . SKU Code 25400 - Zombies 3: The grouping is centered around a Disney's "Zombies 3" theme. The grouping includes a white miniature backpack with a green and pink accent and the words "Seabrook." The miniature backpack is accompanied by a small white pencil;[7] a carabiner clip; themed miniature post cards; themed sticky notes; a miniature, plastic, themed plastic, zip-lock pen bag; a themed miniature notebook; a small heart shaped themed eraser;[8] and a collection of themed stickers. . SKU Code 25400 - Alice in Wonderland: The grouping is centered around a Disney's "Alice in Wonderland" theme. The grouping includes a small, pink handbag with the face of the "Chesire Cat" printed on. The miniature handbag is accompanied by a small pink pen; a carabiner clip; themed miniature notepad;[9] a miniature, plastic, themed plastic zip-lock pen bag; small pink hair tie;[10] a small, themed mirror;[11] and a small nail file.[12] . SKU Code 25400 - Snow White: The grouping is centered around a Disney's "Snow White" theme. The grouping includes a small, red handbag, in the shape of a heart/apple, with gold highlights. The miniature handbag is accompanied by a small, stylized pen; a carabiner clip; themed miniature notepad; a miniature, plastic, themed plastic zip-lock pen bag; small hairbrush;[13] a small, themed mirror; and a small nail file. . SKU Code 25412 - ASST 1: The grouping does not have a specific theme. The grouping includes a miniature, blue metallic backpack with a small zipper pocket on the front that contains a small pencil, a carabiner clip; a small eraser; a small sticky note pad;[14] and small stickers. . SKU Code 25412 - ASST 2: The grouping does not have a specific theme. The grouping includes a miniature, silver metallic backpack with a small zipper pocket on the front that contains a small pencil, a carabiner clip; a small eraser; a small tape dispenser;[15] and small stickers. . SKU Code 25412 - ASST 3: The grouping does not have a specific theme. The grouping includes a miniature, purple metallic backpack with a small zipper pocket on the front that contains a small pencil, a carabiner clip; a small tape dispenser; a small sticky notepad; and small stickers. . SKU Code 25412 - ASST 4: The grouping does not have a specific theme. The grouping includes a miniature backpack with a transitioning rainbow color scheme with a small zipper pocket on the front that contains a small pencil, a carabiner clip; a small tape dispenser; a small sticky notepad; and small stickers. . SKU Code 25412 - ASST 5: The grouping does not have a specific theme. The grouping includes a miniature, purple metallic backpack with a small zipper pocket on the front; a small pencil, a carabiner clip; a small eraser; a small sticky notepad; and small stickers. . SKU Code 25412 - ASST 6: The grouping does not have a specific theme. The grouping includes a miniature, pink metallic backpack with a small zipper pocket on the front that contains a small pencil, a carabiner clip; a small eraser; a small sticky notepad; and small stickers. . SKU Code 25423 - Cat ASST 1: The grouping has a stylized cat and rainbow theme. The grouping includes a miniature, black and speckled backpack with cat ears and a printed rainbow and cat face. Accompanying the miniature backpack is a small, black pen with a cat paw print cap; a carabiner clip; a themed, plastic zip-lock pen bag; themed postcards; a pink binder clip;[16] a rainbow, sticky notepad; and themed stickers. . SKU Code 25423 - Dog ASST 2: The grouping has a stylized dog and rainbow theme. The grouping includes a miniature, pink and fluffy backpack with dog ears, a silver bow, and a printed dog face. Accompanying the miniature backpack is a small, stylized pen; a carabiner clip; a purple binder clip; a small, themed notebook; themed postcards; a small tape dispenser; and themed stickers. . SKU Code 25423 - Bear ASST 3: The grouping has a stylized bear and rainbow theme. The grouping includes a miniature rainbow and fluffy backpack with bear's ears and a printed bear face. Accompanying the miniature backpack is a small, stylized pencil; a carabiner clip; a small, themed notebook; a themed, plastic, zip-lock pen bag; a pink ruler;[17] a themed eraser; and themed stickers. . SKU Code 25423 - Wing ASST 4: The grouping has a pink, wing, and heart theme. The grouping includes a miniature, pink backpack with pink wings attached to the front. Accompanying the miniature backpack is a small, stylized pencil with three hearts stacked; a carabiner clip; a themed, plastic, zip-lock pen bag; a small, themed notebook; themed postcards; a themed eraser; and themed stickers. . SKU Code 25423 - Plush ASST 5: The grouping a has a rainbow, cheetah/flower print theme. The grouping includes a miniature, plush backpack with a rainbow, cheetah/flower print. Accompanying the miniature backpack is a small, themed pencil; a carabiner clip; a small, themed notebook; a miniature, themed lunch box;[18] miniature themed water bottle;[19] themed eraser; and themed stickers. . SKU Code 25423 - Sequins ASST 6: The grouping does not have a theme. The grouping includes a miniature, sequined backpack. Accompanying the miniature backpack is a small pen; a carabiner clip; a small notebook; small postcards depicting stylized cats; a small purple binder clip; a small rainbow notepad; and a collection of stickers. . SKU Code 25423 - Cat ASST 7: The grouping has the same stylized cat and rainbow theme as SKU Code 25423 - Cat ASST 1 and the same miniature backpack with slightly different items accompanying the miniature backpack. Accompanying the miniature backpack is a small, black pen with a cat paw print cap; a carabiner clip; a themed, plastic, zip-lock pen bag; a small pink binder clip; a small tape dispenser; a ruler; and themed stickers. . SKU Code 25423 - Dog ASST 8: The grouping has the same stylized dog and rainbow theme as SKU Code 25423 - Dog ASST 2 and the same miniature backpack with slightly different items accompanying the miniature backpack. Accompanying the miniature backpack is a small, stylized pen; a carabiner clip; small, themed notebook; a small tape dispenser; themed sticky notes; a ruler; and themed stickers. . SKU Code 25423 - Bear ASST 9: The grouping has the same stylized bear and rainbow theme as SKU Code 25423 - Bear ASST 3 and the same miniature backpack with slightly different items accompanying the miniature backpack. Accompanying the miniature backpack is a small, stylized pencil; a carabiner clip; a small, themed notebook; a themed, plastic, zip-lock pen bag; a themed postcard set; a purple binder clip; and themed stickers. . SKU Code 25423 - Wing ASST 10: The grouping has the same pink, wing, and heart theme as SKU Code 25423 - Wing ASST 4 and the same miniature backpack with slightly different items accompanying the miniature backpack. Accompanying the miniature backpack is a small, stylized pencil; a carabiner clip; a themed, plastic, zip-lock pen bag; a small, themed notebook; a pink binder clip; small themed sticky notes; and themed stickers. . SKU Code 25423 - Plush ASST 11: The grouping has the same rainbow, cheetah/flower print theme as SKU Code 25423 - Plush ASST 5 and the same miniature backpack with slightly different items accompanying the miniature backpack. Accompanying the miniature backpack is a small, themed pencil; a carabiner clip; a small, themed notebook; a themed postcard set; a purple binder clip; small themed sticky notes; and themed stickers. . SKU Code 25423 - Sequins ASST 12: The grouping does not have a theme but does contain the same miniature backpack as SKU Code 25423 - Sequins ASST 6. Accompanying the miniature backpack is a small pen; a carabiner clip; a small notebook; a small tape dispenser; a small rainbow sticky note pad; a small notepad; and a collection of stickers.

Documents provided by Protestant present, and reference other themed groups of items centered on miniature bags and backpacks that were not part of the groupings described above, were not part of the protested entries, and therefore are not considered herein. The protested merchandise consists of 32 entries that were entered at the Port of Tacoma, WA, between December 15, 2020, and October 5, 2021. The 32 entries liquidated on March 18, 2022, under various subheadings that describe each particular item. The Protestant filed this Protest and AFR on September 14, 2022, asserting that the subject merchandise should have been classified under 9503.00.00, HTSUS, which provides for "[t]ricycles, 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."

ISSUE:

Whether the subject articles are properly classified under subheading 9503, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the matter is protestable under 19 U.S.C. 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. 1514(c)(3) (2006)). Further review of Protest No. 3002-22-104032 is properly accorded pursuant to 19 C.F.R. 174.24(b) because the decision against which the protest was filed is alleged to be inconsistent with ruling by CBP and the Customs courts.

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event the goods cannot be classified solely based on 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.

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 6 provides that for legal purposes, classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.

The HTSUS subheadings under consideration are the following:

9503.00.00 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 kinds; parts and accessories thereof:

Note 1 to Chapter 95, HTSUS, states, in part:

This chapter does not cover:

***

(d) Sports bags or other containers of heading 4202, 4303 or 4304;

***

(x) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material). See subheading 9817.95.01 and 9817.95.05

Note 4 to Chapter 95, HTSUS, states:

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.

The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (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).

EN 95.03 states, in pertinent part:

This heading covers:

***

(D) Other Toys.

This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes :

***

(E) Reduced-size ("scale") models and similar recreational models.

This includes models of a kind mainly used for recreational purposes, for example, working or scale models of boats, aircraft, trains, vehicles, etc., and kits of materials and parts for making such models, other than sets having the character of competitive games of heading 95.04 (e.g., sets comprising slot-racing motor cars with their track layout).

***

Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this heading when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).

Also, as provided by Note 4 to this Chapter, subject to Note 1 to this Chapter, this heading includes articles of the heading combined with one or more items which would be classified in other headings if presented separately, provided that :

(a) the combined items are put up together for retail sale, but the combination cannot be considered as a set under the terms of General Interpretative Rule 3 (b); and

(b) the combination has the essential character of toys. Such combinations generally consist of an article of this heading and one or more items of minor importance (e.g., small promotional articles or small amounts of confectionery).

***

This heading also excludes:

a) Paints put up for children's use (heading 32.13).

b) Modelling pastes put up for children's amusement (heading 34.07).

c) Children's picture, drawing or colouring books of heading 49.03.

(d) Transfers (heading 49.08).

***

(h) Card games (heading 95.04).

***

(k) Crayons and pastels for children's use, of heading 96.09.

* * * * *

Protestant argues all of the products are correctly classified under 9503.00.00, HTSUS. Heading 9503, HTSUS, is in relevant part, a "principal use" provision, and classification is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of importation, and the controlling use is the principal use. Springs Creative Products Group v. United States, 2013 Ct. Int'l. Trade LEXIS 112, Slip Op. 2013-107 (CIT 2013) (citing Additional U.S. Rule of Interpretation 1(a)). Therefore, classification under the heading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation. In determining the class or kind of goods, the Court examines factors which may include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g. the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. See United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert denied, 429 U.S. 979 (1976); Lennox Collections v. United States, 20 CIT 194, 196 (1996). However, all the groups include multiple components. As such, CBP must first determine whether the groups can be classified as "sets" under GRI 3(b) or, in the alternative, under Note 4 to Chapter 95, HTSUS. Groups that cannot be classified as sets must have their components classified individually under the HTSUS.

SKU Code 2538 - Minnie Mouse and SKU Code 25423 - Plush ASST 5, the Groups are not sets under GRI 3(b) or Note 4 to Chapter 95

The articles at issue are various items packaged together as groups, but the groups cannot be considered as sets under the terms of General Interpretative Rule 3(b). To be classified as a GRI 3(b) retail 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)). The groupings meet the first and third criteria, because many of the components are prima facie classifiable in different headings and the groups do not need to be repackaged for sale; however, the groupings do not meet the second criterion necessary for classification as a GRI 3(b) retail set. They are not packaged together to meet a particular need or to carry out a specific activity.

Other than SKU Code 2538 - Minnie Mouse, every one of the groupings has a miniature backpack or bag included to carry the other items. The miniature backpacks and bags, while some carry the same aesthetic theme as the other items in the group, do not serve any purpose beyond carrying the other items. Nor are the miniature backpacks and bags specifically shaped or fitted to carry the other items in each group. Further, the other components included, besides the miniature bags and backpacks, vary considerably from each other and are not designed to work together to meet a particular need or accomplish a clear purpose such as decorating the bag or interacting together for a specific action or creation. In fact, much of the appeal and advertisement of the Real Littles line of products appears to be the mystery and wonder of discovering what is actually included with the miniature bags and the variety of items that could comprise the components of a group. See Moose Toys, Real Littles Disney Handbags and Backpacks, visited March 8, 2024, https://www.moosetoys.com/our-toys/real-littles/real-littles-disney-handbags-and-backpacks/ (advertising "colorful Disney-themed Backpacks and Bags are now filled with All-New mini collectible surprises to find!"); Moose Toys, Real Littles Backpack Collection, visited March 8, 2024, https://www.moosetoys. com/our-toys/real-littles/real-littles-backpack-single-pack-2/ (advertising "colorful Backpacks are now filled with real mini collectible surprises to find!"). At best certain groupings have a similar color pallet or theme but that is not sufficient to meet GRI 3(b)'s set criteria. Compare Headquarters Ruling Letter ("HQ") H318707, dated September 1, 2021 (classifying play tent sets and carry bag in heading 9503, HTSUS, because the play tents could not function without each component and were designed specifically to enhance imaginative play.) with HQ H070735, dated June 11, 2018 (classifying a vinyl purse carrier separately from a plastic toy cat, crown and ice cream cone because no particular purpose unites all four items.). As such, the groupings do not meet the second criteria to be classified as a retail set under GRI 3(b). See also HQ H300680, dated March 18, 2019 (examining plastic play food and a backpack and determining the items cannot be a retail set under GRI 3(b)); HQ H250150, dated June 11, 2018 (examining toy kitchen collections with backpack carriers and determining the backpack does not contribute to the imaginative play of the other components).

On the other hand, every item in SKU Code 2538 - Minnie Mouse - is designed to function together to decorate or otherwise facilitate play with the pink miniature locker. For example, the "wallpaper" stickers, the miniature carpet, mirror, and chandelier are specifically shaped to fit inside the locker. The components of this group function together to enhance the imaginative play of the locker and as such meet a particular need. As such, the group is a set under GRI 3(b).

Except for SKU Code 2538 - Minnie Mouse, every other grouping must meet the criteria of Note 4 to Chapter 95 to be considered a toy set of heading 9503, HTSUS. To that end, EN 95.03 makes clear that Note 4 to Chapter 95, HTSUS, requires items be put up together for retail sale, which the articles are, and "the combination has the essential character of toys" for classification under heading 9503, HTSUS, to be appropriate. Generally, such combinations "consist of an article of this heading and one or more items of minor importance." As such, the classification of the groups is dependent upon whether there is a toy within the groups and whether the whole group has the essential character of toys. The term "toy" is not defined in the tariff. As such, CBP is tasked with determining the scope of the term by relying upon its own understanding of the term, and by consulting dictionaries, lexicons, and other reliable sources. Medline Indus. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995). 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). In Processed Plastic Co. v. United States, 473 F.3d 1164 (Fed. Cir. 2006), the court held that "the principal use of a "toy" is amusement, diversion, or play ... rather than practicality." To assist in the determination of whether an article should be classified as a toy or not, the court in Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33, Cust. Dec. 4688 (1977), stated that "[w]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement." In Simon Mktg. v. United States, 29 CIT 1111, 1122, 395 F. Supp. 2d 1280, 1291 (2005), the CIT held that to "classify every eye-catching, child-friendly article as a toy, simply because it enhances a child's imagination, is to unacceptably blur the HTSUS headings defeating their purpose and leading to absurd results." Not all merchandise that provides amusement is properly classified as a toy. The HTSUS explicitly acknowledges that reality by excluding certain products from being classified as toys irrespective of the design for children or the amount of amusement the merchandise provides to a child. The ENs to 95.03 further clarify that paints, modeling pastes, picture books, drawing books, coloring books, transfers, crayons, and pastels should not be classified under 9503, HTSUS, even if they are explicitly designed or intended for children's use. As such, CBP must look at each item within these groups to determine what qualifies as a toy. The most straightforward groupings to examine include SKU Code 25412 - ASST 1, SKU Code 25412 - ASST 2, SKU Code 25412 - ASST 3, SKU Code 25412 - ASST 4, SKU Code 25412 - ASST 5, and SKU Code 25412 - ASST 6. The groups are characterized by not having a "theme" that connects any of the components, the miniature backpacks all have a small zipper pocket on the front, and the groups contain only five additional components besides the miniature backpacks. The additional components are combinations of a small pencil, a carabiner clip, a small eraser, a small sticky note pad, small stickers, and a small functional tape dispenser. Put simply, none of the items in these groupings meet the definition of toy. The miniature backpacks are meant to carry the other items, except for the carabiner clip which is meant to affix the miniature backpack to other things, and therefore is inherently utilitarian in design and function. See HQ H315362, dated March 24, 2021 (classifying a textile container sold with a plush baby Yoda doll in heading 4202, HTSUS, because "[t]he doll and textile bag are not put up together to meet a particular need or carry out a specific activity . . . [and] nothing that dedicates the use of the textile bag to the doll with which it is packaged nor is it needed to amuse a child playing with the doll"); HQ H251116, dated November 23, 2015 (classifying a handbag decorating kit in heading 4202, HTSUS, because the "entertainment value in decorating the purse . . . does not outweigh its utilitarian function, and the fact that the product may be stylized does not cause it to fall outside the scope of heading 4202, HTSUS."). The miniature backpack is a utilitarian item and cannot be considered a toy because of Note 1(x) to Chapter 95, HTSUS.

Similarly, the carabiner clip, the small eraser, the small sticky note pad, the stickers and miniature pencil have utilitarian or other purposes that far exceed any amusement the items would impart and are not toys under Note 1(x) to Chapter 95, HTSUS. The exceptions detailed in the notes to Chapter 95 and the ENs to Chapter 95 make clear that utilitarian items cannot be classified as toys and CBP adheres to that distinction closely. Compare HQ H149977, dated July 30, 2015 (classifying a memorabilia ball point pen shaped to be a football player and a shoe standing base in heading 9503, HTSUS, because the ink cartridge in the pen is small and not replaceable. As such, the pen functioned more as a decorative item than a pen.) with HQ H085715, dated August 9, 2010 (classifying a ball point pen and an audio playback device under heading 9608, HTSUS, via application of GRI 3(c) because amusement value and utilitarian value were equally prominent.). At best these items are disparate school supplies and may incidentally amuse due to the small size of the items, but that amusement is secondary to the primary utilitarian purposes of drawing, erasing, etc. See HQ H037544, dated September 3, 2009 (classifying a Disney-themed drawing board with crayons and coloring sheets under heading 3926, HTSUS, because the "primary use of the merchandise is to facilitate and encourage drawing and coloring.); HQ 967798, dated February 28, 2006 (holding that a drawing set was not a toy set because coloring lacked manipulative play value.). As such, none of the components in SKU Code 25412 - ASST 1, SKU Code 25412 - ASST 2, SKU Code 25412 - ASST 3, SKU Code 25412 - ASST 4, SKU Code 25412 - ASST 5, and SKU Code 25412 - ASST 6 are toys in their own right. Further, the groupings collectively do not have the essential character of toys - the groupings are disparate collections of school supplies for children. Note 4 to Chapter 95, HTSUS, does not apply to SKU Code 25412 - ASST 1, SKU Code 25412 - ASST 2, SKU Code 25412 - ASST 3, SKU Code 25412 - ASST 4, SKU Code 25412 - ASST 5, and SKU Code 25412 - ASST 6 and the components contained in the respective containers must be individually classified.

The second set of groupings that present a straightforward analysis includes SKU Code 25400 - Raya, SKU Code 25400 - Tinkerbell, SKU Code 25400 - The Little Mermaid, SKU Code 25400 - Zombies 3, SKU Code 25400 - Alice in Wonderland, and SKU Code 25400 - Snow White. These groups are characterized by having a single theme connecting all or almost all of the components in a group. Each theme is recognizable and directed towards children, with themes centered on Disney movies and their characters. Each group consists of a themed miniature backpack or bag and seven to eight additional items. The additional items vary more than the previous group, but each one carries a small pen or pencil and a carabiner clip. The other items in a group are small, themed post cards, themed sticky notes, a small themed plastic zip-lock bag, a small, themed notebook, themed stickers, themed small erasers, small, themed mirrors, and small nail files. SKU Code 25400 - Alice in Wonderland has a unique small, themed hair tie and SKU Code 25400 - Snow White has a unique miniature hairbrush.

As explained above, the miniature backpacks and bags on their own cannot be considered toys because the utility the backpacks and bags are intended to provide to the groups far outweighs the amusement the unique themes and artistic designs present in these groups. See HQ H305441, dated August 19, 2020 (classifying a textile stuffed Mickey Mouse with a zippered compartment and straps for use as a backpack in heading 4202, HTSUS, because the Mickey Mouse backpack was designed to primarily function as a backpack.); HQ 963638, dated November 2, 2001 (classifying miniature representations of "Rugrats" figures with zipper cavities for storing items and a sturdy textile handle in heading 4202, HTSUS). While the Disney themes might make the miniature backpacks and bags more appealing to children than the same type of item without the themes, the reality remains that the primary purpose is utilitarian and to collect, carry, and protect the other components. CBP has found themed carriers to be toys where the carrier could double as a carrier and interact with the other components for imaginative play. See New York Ruling Letter ("NY") N295731, dated April 24, 2018 (classifying a toy set in heading 9503, HTSUS, where the components were packaged in a cardboard "gift box" designed to be used as the party-themed play environment for the other components.) However, beyond a similar "look" there is no discernable "play" the miniature backpacks and bags are supposed to perform with the other components. As such, Note 1(x) to Chapter 95, HTSUS, specifically excludes such items from being classified as toys.

Additionally, for the same reason, the small, themed post cards, themed sticky notes, a small themed plastic zip-lock bag, a small, themed notebook, themed stickers, themed small erasers, small, themed mirrors, and small nail files all have clear utilitarian purposes that exceed the amusement even the addition of a theme would allow the components to provide. The items are explicitly utilitarian items or so disconnected from each other in purpose that concluding the items can perform in the same imaginative play is beyond the pale. The themed hair tie in the SKU Code 25400 - Alice in Wonderland, while unique to that group, cannot be described as a toy, on its own, because the primary purpose of a hair tie is utilitarian. The unique miniature hairbrush in SKU Code 25400 - Snow White presents a slightly different analysis because its small size would suggest limited utility as suggested by the ENs to Chapter 95 of indicating a toy. However, CBP has examined similarly small hairbrushes and found the hairbrushes, on their own, do not qualify as toys. See HQ 965285, dated March 29, 2002 (classifying a musical comb and doll where the doll portion measured 2 inches tall and 1.75 inches in width and the comb portion measures 1.75 inches by .5 inches. The doll comb combination was classified under heading 9615, HTSUS.) Therefore, none of the components in SKU Code 25400 - Raya, SKU Code 25400 - Tinkerbell, SKU Code 25400 - The Little Mermaid, SKU Code 25400 - Zombies 3, SKU Code 25400 - Alice in Wonderland, and SKU Code 25400 - Snow White are toys, the groups cannot be considered sets under Note 4 to Chapter 95, HTSUS, and the components of each group must be individually classified.

The final groupings to examine include SKU Code 25423 - Cat ASST 1, SKU Code 25423 - Dog ASST 2, SKU Code 25423 - Bear ASST 3, SKU Code 25423 - Wing ASST 4, SKU Code 25423 - Plush ASST 5, SKU Code 25423 - Sequins ASST 6, SKU Code 25423 - Cat ASST 7, SKU Code 25423 - Dog ASST 8, SKU Code 25423 - Bear ASST 9, SKU Code 25423 - Wing ASST 10, SKU Code 25423 - Plush ASST 11, and SKU Code 25423 - Sequins ASST 12. Generally, these groupings are centered around a theme, except for SKU Code 25423 - Sequins ASST 6 and SKU Code 25423 - Sequins ASST 12 which do not have a theme, that is characterized by the appearance of the miniature backpack. However, as compared to the grouping centered on Disney themes, these groupings have generally fewer components that clearly adhere to the group's overall theme and many of the exact same components appear in each group. For example, the exact same rulers and binder clips exist in multiple groups. Each group has a miniature backpack and seven other components which always include a small pen or pencil and a carbineer clip. The other components that appear in the groups include a small, themed post card, themed sticky notes, a small themed plastic zip-lock bag, a sticky notepad, a small binder clip, a small, themed notebook, themed stickers, themed small erasers, a small tape dispenser, and a ruler. SKU Code 25423 - Plush ASST 5 has two unique components that do not appear in the other groups, a miniature lunch box and a miniature drink bottle. As explained above the miniature backpacks cannot be considered toys. While the backpacks are designed to appeal to children, their primary function and purpose continues to be utilitarian, to carry and protect other items. Additionally, the other components, except for the unique pair in SKU Code 25423 - Plush ASST 5, are not toys. The components generally mirror the components addressed above but with more generic themes. More importantly, the items continue to primarily function as utilitarian items and can best be described as school supplies. As such, none of the components are toys, cannot carry the groups under Note 4 to Chapter 95, HTSUS, and must be individually classified.

The miniature drink bottle and miniature lunch box, in SKU Code 25423 - Plush ASST 5, are the exception that proves the rule in this analysis. The miniature drink bottle and miniature lunch box are toys. The components provide no or extremely limited utility because the components are too small to carry any appreciable amount of water or other things. As such, the amusement value provided by the miniature drink bottle and miniature lunch box exceeds the utility of the components and weighs in favor of recognizing the components as toys. Furthermore, the flower, rainbow theme connecting between most of the components in SKU Code 25423 - Plush ASST 5, while limited provides a bare level of connection to raise the entire groups essential character to that of a toy, anchored by the two actual toys included in the group. As such, Note 4 to Chapter 95, HTSUS, applies to SKU Code 25423 - Plush ASST 5 and it may be classified as a toy set.

Except for SKU Code 2538 - Minnie Mouse and SKU Code 25423 - Plush ASST 5, the Carborundum Factors preclude classification of the Groups as Toys

Except for SKU Code 2538 - Minnie Mouse and SKU Code 25423 - Plush ASST 5, the groupings cannot be classified as sets under GRI 3(b) or Note 4 to Chapter 95, HTSUS, and an examination of the groups' principal use further reinforces CBP's conclusion that the groups cannot be classified as toys and do not have the essential character of toys. Classification of toys is determined by the principal use of item at the time of importation. To determine whether an article is included in a particular class or kind of merchandise, such as toys, CBP considers a variety of factors, often referred to as the "Carborundum" factors, to determine whether articles are classifiable as toys. The factors include: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class. See Carborundum, supra, 536 F.2d at 377. Other than SKU Code 2538 - Minnie Mouse and SKU Code 25423 - Plush ASST 5, application of the Carborundum factors to the groups demonstrates the components and the groups, as a whole, cannot be classified under heading 9503, HTSUS.

1. As explained in more detail above, the general physical appearance of the components and the groups, as a whole, are designed to appeal to a child, such as through bright colors and Disney themes, but the physical characteristics are utilitarian. The pens, pencils, notebooks, notepads, sticky notes, sticky note pads, erasers, rulers, postcards, and stickers are practical supplies for the office, school, or home and have clear and distinct utilitarian purposes. Further when the groups are viewed as a whole no clear "play" functions or use stands out beyond the potential for collective practical applications, such as drawing, writing notes, etc. As such, the first factor weighs heavily against classification of the components or the groups as toys. 2. When reviewing the channels of class or kind of trade in which the merchandise moves (where the merchandise is sold) it is clear the groups are predominantly sold in toy sections, aisles and websites of stores. However, the individual components do not share a similar level of clarity. The components can be and are sold outside of toy sections and web pages. Miniature stationery and school supplies, designed for children, are sold across multiple aisles in stores. Altogether, this factor slightly weighs in favor of classification of the groups as toys. 3. The expectation of the ultimate purchaser can be difficult to determine. However, the manner in which the groups are advertised is telling. Predominantly advertised by the Protestant to the ultimate purchaser, parents of small children, is the fact that the Real Littles Handbags and Backpacks contain "stationary and beauty surprises inside. . . . These are tiny toy school supplies made mini, but they all really work!" or the Real Little Backpack Collection allows children to "create the ultimate micro stationery collection!" Moose Toys, Real Littles Disney Handbags and Backpacks, visited March 8, 2024, https://www.moosetoys.com/our-toys/real-littles/real-littles-disney-handbags-and-backpacks/; Moose Toys, Real Littles Backpack Collection, visited March 8, 2024, https://www.moosetoys.com/our-toys/real-littles/real-littles-backpack-single-pack-2/. The advertisement and the practical utility provided by the components of the groups directs the reasonable conclusion that the ultimate purchaser would expect the groups to function as utilitarian items. Altogether, this factor weighs against the classification of the groups as toys. 4. The environment of sale is, as demonstrated by factor two and factor three, difficult to determine. The groups and their components are designed, decorated, packaged, and advertised to children and the entertainment of children. However, the advertisement also emphasizes the practicality of the groups and the included components. As such, this factor does not weigh for or against classification of the groups as toys. 5. The primary usage of the groups is utilitarian. As explained in more detail above, beyond aesthetic themes, very little demonstrates the components of each group, or the groups as a whole, are intended to work together for any play activity. The groups are random collections of useful or eye-catching, for children, items and CBP must conclude the components are included in each group for the utilitarian purpose for which the item is designed, i.e. to carry the other items, for drawing, etc. Therefore, this factor weighs heavily against classifying the groups as toys.

The Carborundum factors demonstrate and reinforce the conclusion reached above. Except for SKU Code 2538 - Minnie Mouse and SKU Code 25423 - Plush ASST 5, the groups and their components are designed for and advertised to children, but the primary usage will be utilitarian. As such, the groups that are not sets under GRI 3(b) or Note 4 to Chapter 95, HTSUS, cannot be classified in heading 9503, HTSUS, and each component must be classified separately. In fact, the inclusion of toys in SKU Code 2538 - Minnie Mouse and SKU Code 25423 - Plush ASST 5 shifts the Carborundum factor analysis, for those two groups, towards weighing in favor of classification under 9503, HTSUS. The toys help reveal a play function in the groups for factor one and reveals the primary use of the groups for amusement under factor five.

Protestant provides many examples of the numerous items that can be combined in other Real Little groups. Some of those combinations, as with combinations of the components in SKU Code 2538 - Minnie Mouse and SKU Code 25423 - Plush ASST 5 are potentially capable of producing sets classifiable under heading 9503, HTSUS. However, those combinations are not the subject of this Protest nor is every potential component that could be included in the Real Littles line of products the subject of this protest. Hypothetical combinations do not factor in this analysis.

Individual Component Classification

As explained above only two groups qualify to be considered sets. The first is SKU Code 2538 - Minnie Mouse which is a retail set under GRI 3(b). The second is SKU Code 25423 - Plush ASST 5 which is a toy set under Note 4 to Chapter 95, HTSUS. Both groups contain the essential character of a toy and as such are correctly classified under heading 9503, HTSUS, and specifically under 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 other groups are not sets and each component must therefore be classified individually. Per GRI 1 the miniature backpacks and bags are explicitly provided for under heading 4202, HTSUS, as small bags designed to carry small items, such as toiletry bags, purses, and handbags. Specifically, the miniature backpacks and bags are classified under subheading 4202.32.10, HTSUS, which provides for "Trunks, suitcases, vanity cases, attach 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: Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastics or of textile materials: With outer surface of sheeting of plastics: Of reinforced or laminated plastics."

A small pen or pencil appears in every group, except in SKU Code 2538 - Minnie Mouse. The small pens are all ball points and explicitly described in heading 9608, HTSUS. Specifically, the small pen is classified in subheading 9608.10.00, HTSUS, which provides for "Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609: Ball point pens." The small pencils are simply small versions of a normal pencil and explicitly provided for in heading 9609, HTSUS. Specifically, the small pencil is classified in subheading 9609.10.00, HTSUS, which provides for "Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors' chalks: Pencils and crayons, with leads encased in a sheath."

A carabiner clip appears in every group, except in SKU Code 2538 - Minnie Mouse. The carabiner clip is an article of aluminum explicitly provided for in heading 7616, HTSUS.[20] See N244713, dated Aug. 28, 2013 (classifying, among other things, a nearly identical aluminum carabiner clip in heading 7616, HTSUS). Specifically, the carabiner clips are classified in subheading 7616.99.51, HTSUS, which provides for "Other articles of aluminum: Other: Other: Other."

A sticky note pad appears in many of the groups. Sticky note pads of any size are explicitly provided for in heading 4820, HTSUS, as a memorandum pad. Specifically, the sticky note pads, themed or not, are classified under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles."

A set of sticky notes appears in a number of groups and can carry the theme of the group or bear another print. Sticky notes are provided for in heading 4820, HTSUS. Specifically, the sticky notes, themed or not, are classified under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles."

A small notebook, themed or not, appears in many of the groups. Notebooks of any size are explicitly provided for in heading 4820, HTSUS. Specifically, the notebooks, themed or not, should be classified under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles."

A notepad, themed or not, appears in many of the groups. Notepads of any size are explicitly provided for in heading 4820, HTSUS. Specifically, the notepads, themed or not, should be classified under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles."

The post cards with themed and un-themed prints appear in many of the groups. While designated and called "post cards," the items themselves do not have the indicia to demonstrate the items use as postcards and are merely pictures with a blank side. As such, the post cards are explicitly provided for in heading 4911, HTSUS.[21] See EN 49.09 ("Picture postcards, i.e., cards which have printed indications of their use as postcards, and in which the whole or greater part of one side is devoted to pictorial matter of any kind. Similar products not having such indications of use are classified as pictures in heading 49.11."); NY N330960, dated Feb. 22, 2023. Specifically, the post cards are classified under subheading 4911.91.40, HTSUS, which provides for "Other printed matter, including printed pictures and photographs: Other: Other printed matter, including printed pictures and photographs: Printed not over 20 years at time of importation: Other: Other."

Stickers of various sizes appear in many of the groups and depict the theme of the group or depict generic fun images such as stars, hearts, rainbows, etc. Stickers are provided for in heading 4911, HTSUS. See NY N273080, March 18, 2016. The stickers are specifically classified under subheading 4911.91.40, HTSUS, which provides for "Other printed matter, including printed pictures and photographs: Other: Other printed matter, including printed pictures and photographs: Printed not over 20 years at time of importation: Other: Other."

A small eraser appears in a few of the groups. The erasers are thermoplastic rubber which is properly classified under heading 3926. See NY N329026, dated November 7, 2022. Specifically, the erasers are properly classified under subheading 3926.10.00, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies."

A small but fully functional tape dispenser appears in a few of the groups. The structure of the tape dispenser is of plastic and therefore provided for under heading 3926, HTSUS. Specifically, the tape dispensers are classified in subheading 3926.10.00, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies."

The plastic zip-lock pen bags appear in many of the groups. The pen bags are explicitly provided for as an "other article of plastics" under heading 3926, HTSUS. Specifically, the pen bags are classified in subheading 3926.90.99, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."

The mirrors that appear in SKU Code 25400 - Alice in Wonderland and SKU Code 25400 - Snow White are made completely of plastic. As such, the mirrors are classified under heading 3926, HTSUS. See NY N302858, dated Feb. 27, 2019. Specifically, the mirrors are classified under heading 3926.90.99, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."

A few of the groups contain a small, plastic binder clip. The binder clips are other articles of plastic of heading 3926, HTSUS. Specifically, the binder clips are classified under 3926.90.99, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."

A hair tie appears in SKU Code 25400 - Alice in Wonderland. The hair tie is a rubber cord that has been sheathed in braided textile fabric and is described under heading 6117, HTSUS, as a clothing accessory.[22] See NY N298628, dated July 30, 2018. Specifically, the hair tie is classified under 6117.80.85, HTSUS, which provides for "Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other Accessories: Other: Headbands, ponytail holders and similar articles."

A themed nail file appears in SKU Code 25400 - Alice in Wonderland and in SKU Code 25400 - Snow White. Nail files are explicitly provided for in heading 8214, HTSUS.[23] Specifically, the nail files are classified under 8214.20.30, HTSUS, which provides for "Other articles of cutlery (for example, hair clippers, butchers' or kitchen cleavers, chopping or mincing knives, paper knives); manicure or pedicure sets and instruments (including nail files); base metal parts thereof: Cuticle or cornknives, cuticle pushers, nail files, nailcleaners, nail nippers and clippers, all the foregoing used for manicure or pedicure purposes, and parts thereof."

The hairbrush incorporated into SKU Code 25400 - Snow White is explicitly provided for in heading 9603, HTSUS. Specifically, the hairbrush is classified under subheading 9603.29.40, HTSUS, which provides for "Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): Toothbrushes, shaving brushes, hair brushes, nail brushes, eyelash brushes and other toilet brushes for use on the person, including such brushes constituting parts of appliances: Other: Valued not over 40 each."

A small ruler is included in SKU Code 25423 - Bear ASST 3, SKU Code 25423 - Cat ASST 7, and SKU Code 25423 - Dog ASST 8. Rulers are described by heading 9017, HTSUS. Specifically, the rulers are classified under 9017.80.00, HTSUS, which provides for "Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof: Other instruments."

HOLDING:

By application of GRIs 1, 3(b), and 6, SKU Code 2538 - Minnie Mouse is to be classified under heading 9503, HTSUS, and specifically under 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." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, SKU Code 25423 - Plush ASST 5 is to be classified under heading 9503, HTSUS, and specifically under 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." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, the miniature backpacks and bags are to be classified under heading 4202, HTSUS, and specifically, under subheading 4202.32.10, HTSUS, which provides for "Trunks, suitcases, vanity cases, attach 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: Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastics or of textile materials: With outer surface of sheeting of plastics: Of reinforced or laminated plastics." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 12.1/kg + 4.6% ad valorem.

By application of GRIs 1 and 6, the small pens are to be classified under heading 9608, HTSUS, and specifically, under subheading 9608.10.00, HTSUS, which provides for "Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609: Ball point pens." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 0.8 each + 5.4% ad valorem.

By application of GRIs 1 and 6, the small pencils are to be classified under heading 9609, HTSUS, and specifically under subheading 9609.10.00, HTSUS, which provides for "Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors' chalks: Pencils and crayons, with leads encased in a sheath." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 14/gross + 4.3% ad valorem.

By application of GRIs 1 and 6, the carabiner clips are to be classified under heading 7616, HTSUS, and specifically under subheading 7616.99.51, HTSUS, which provides for "Other articles of aluminum: Other: Other: Other." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 2.5% ad valorem.

By application of GRIs 1 and 6, the sticky note pads are classified under heading 4820, HTSUS, and specifically under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, the sticky notes are classified under heading 4820, HTSUS, and specifically under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, the small notebooks are classified under heading 4820, HTSUS and specifically under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, the notepads are classified under heading 4820, HTSUS, and specifically under subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, the post cards are classified under heading 4911, HTSUS, and specifically under subheading 4911.91.40, HTSUS, which provides for "Other printed matter, including printed pictures and photographs: Other: Other printed matter, including printed pictures and photographs: Printed not over 20 years at time of importation: Other: Other." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, the stickers are classified under heading 4911, HTSUS, and specifically under subheading 4911.91.40, HTSUS, which provides for "Other printed matter, including printed pictures and photographs: Other: Other printed matter, including printed pictures and photographs: Printed not over 20 years at time of importation: Other: Other." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was free.

By application of GRIs 1 and 6, the erasers are classified under heading 3926, HTSUS, and specifically under subheading 3926.10.00, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 5.3% ad valorem.

By application of GRIs 1 and 6, the small tape dispensers are classified under heading 3926, HTSUS, and specifically under subheading 3926.10.00, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 5.3% ad valorem.

By application of GRIs 1 and 6, the plastic zip-lock pen bags are classified under heading 3926, HTSUS, and specifically under subheading 3926.90.99, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 5.3% ad valorem.

By application of GRIs 1 and 6, the mirrors are classified under heading 3926, HTSUS, and specifically under heading 3926.90.99, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 5.3% ad valorem.

By application of GRIs 1 and 6, the small, plastic binder clip is classified under heading 3926, HTSUS, and specifically under 3926.90.99, HTSUS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 5.3% ad valorem.

By application of GRIs 1 and 6, the hair tie is classified under heading 6117, HTSUS, and specifically under 9615.11.50, HTSUS, which provides for "Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other Accessories: Other: Headbands, ponytail holders and similar articles." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 14.6% ad valorem.

By application of GRIs 1 and 6, the nail files are classified under heading 8214, HTSUS, and specifically under 8214.20.30, HTSUS, which provides for "Other articles of cutlery (for example, hair clippers, butchers' or kitchen cleavers, chopping or mincing knives, paper knives); manicure or pedicure sets and instruments (including nail files); base metal parts thereof: Cuticle or cornknives, cuticle pushers, nail files, nailcleaners, nail nippers and clippers, all the foregoing used for manicure or pedicure purposes, and parts thereof." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 4% ad valorem.

By application of GRIs 1 and 6, the hairbrush is classified under heading 9603, HTSUS, and specifically, classified under subheading 9603.29.40, HTSUS, which provides for "Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): Toothbrushes, shaving brushes, hair brushes, nail brushes, eyelash brushes and other toilet brushes for use on the person, including such brushes constituting parts of appliances: Other: Valued not over 40 each." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 0.2 each + 7% ad valorem.

By application of GRIs 1 and 6, the small rulers are classified under heading 9017, HTSUS, and specifically, the rulers are classified under 9017.80.00, HTSUS, which provides for "Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof: Other instruments." Between December 15, 2020, and October 5, 2021, the column one general rate of duty was 5.3% ad valorem.

You are instructed to DENY the protest, except to the extent reclassification of the merchandise is indicated above results in a partial allowance. You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. 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 CBP website at http://www.cbp.gov and other methods of public distribution.

Sincerely,

Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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[1] The pens appearing in the groupings generally measure 3" x .75", have a plastic exterior and cap, and have a ball point.
[2] The carabiner clips appearing in the groupings measure approximately 1.5" x 0.25" x 0.12". Each clip is a small oblong aluminum loop that consists of a latch and a pin. The carabiner can be used to clip items securely to a belt, belt loop, other apparel, backpack, purse, etc.
[3] The post cards are approximately 1.5" x 1" and have a printed picture on one side.
[4] The sticky notes are approximately 1" x .25" with a printed image on one side.
[5] The pen bags measure generally measure 3" x 1.5". The pen bags are entirely of plastic and appear in various colors with images printed on the surface.
[6] The notebook measure 1.5" x 2" and have printed images on the cover.
[7] The pencils measure approximately 3' x .75" and have printed images on the exterior.
[8] The erasers roughly measure 1" and can be various shapes including circular or rectangular. The erasers appear to have images printed directly on them or are wrapped in a decorative paper sleeve.
[9] The notepads measure 1.5" x 2" and have colorful images printed on them.
[10] The hair tie is a rubber cord that has been sheathed in braided textile fabric formed into a loop and glued to a flat, pink plastic plate in a "bow" shape. The hair tie measures approximately .75".
[11] The mirrors are two roughly circular forms of plastic with a hinge to allow the mirrors to close shut and protect the mirror. When closed the mirrors are approximately 1.75" x 2". The exterior of the mirrors has a printed image.
[12] The nail files have a printed image on one side and [13]

-|bH.2hUhm)L0J5?>*B*CJOJQJ\?aJph2hUh8$0J5?>*B*CJOJQJ\?aJph2hUh}`0J5?>*B*CJOJQJ\?aJph2hUhFe0J5?>*B*CJOJQJ\?aJph2hUh>"0J5?>*B*CJOJQJ\?aJph2hUhOUZ0J5?>*B*CJOJmeasure 2.5' by .5".
[14] The hairbrush is a single formed plastic that measures 1.5".
[15] The sticky note pad measures 1.5" x 1.25" and has printed images on one side.
[16] The tape dispenser is composed completely of plastic and functional. The tape dispenser measures 1.5" x .75".
[17] The binder clips are composed of opaque plastic in various colors. The binder clips measure 1" x 1".
[18] The rulers are composed of plastic and depict increments for measurement. The rulers measure approximately 1.5" x .25".
[19] The "lunch box" is composed of plastic and measures 1.85" x 1.85". The lunch box has a hinge and is capable of opening and closing. The top of the lunch box has a printed image.
[20] The "water bottle" is composed of plastic and measures 2.10" x .75". The water bottle has a printed image on the exterior.
[21] The Protest and AFR submitted by the Protestant is not entirely clear whether they are suggesting the carabiner clips are classified under heading 9503, HTSUS, or under heading 3926, HTSUS. Classification under either heading is incorrect on its face. CBP has classified substantially similar carabiner clips in the past and unless the Protestant shows the clips are composed of material besides aluminum the correct classification is under heading 7616, HTSUS.
[22] Protestant suggests the proper classification of the post cards is under heading 4817, HTSUS. The post cards are not plain and, as such, classification in heading 4817, HTSUS, is incorrect.
[23] Protestant suggests the proper classification of the hair tie is in heading 9603, HTSUS, which provides for "Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees)." This classification is incorrect on its face and the hair ties are explicitly provided for in heading 6117, HTSUS.
[24] Protestant suggests the proper classification of the nail files is in heading 6805, HTSUS, which provides for "Natural or artificial abrasive powder or grain, on a base of textile material, of paper, of paperboard or of other materials, whether or not cut to shape or sewn or otherwise made up." This classification is incorrect because heading 8214, HTSUS, explicitly describes the nail files.