HQ 089781

October 22, 1991

CLA-2 CO:R:C:F 089781 LPF

CATEGORY: Classification

TARIFF NO.: 9615.11.3000

District Director

U.S. Customs Service

One World Trade Center

Suite 534

Long Beach, CA 90831-0700

RE: Decision on Application for Further Review of Protest No.

2704-91-101431, filed March 26, 1991, concerning the

classification of \"Minnie \'N Me\" Vanity Set

Dear Sir:

This is a decision on a protest filed March 20, 1991 against

your decision in the classification of the merchandise in the

following entries with dates of liquidation:

entry number date entered date liquidated

xxxxxxx xxxxxxxxxxxxxx Dec. 21, 1990

xxxxxxx xxxxxxxxxxxxxx Dec. 28, 1990

xxxxxxx xxxxxxxxxxxxxx Jan. 4, 1991

xxxxxxx xxxxxxxxxxxxxx Mar. 1, 1991

xxxxxxx xxxxxxxxxxxxxx Feb. 1, 1991

xxxxxxx xxxxxxxxxxxxxx Feb. 22, 1991

xxxxxxx xxxxxxxxxxxxxx Mar. 8, 1991

xxxxxxx xxxxxxxxxxxxxx Mar. 15, 1991

FACTS:

You classified the \"Minnie \'N Me\" Vanity Set under

9603.29.8000, Harmonized Tariff Schedule of the United States

Annotated (HTSUSA), providing for hair brushes valued over 40

cents each, for entry xxxxxxx; under 9615.11.3000, HTSUSA,

providing for other combs valued over \$4.50 per gross for entries

xxxxxxx and xxxxxxx; and under 9615.11.3000 and 9503.90.6000,

HTSUSA, providing for other combs valued over \$4.50 per gross and

other toys, respectively, for entries xxxxxxx, xxxxxxx, xxxxxxx,

xxxxxxx and xxxxxxx.

-2-

The protestant claims the merchandise should be classified

under subheading 9603.29.8000, HTSUSA, providing for hair brushes

valued over 40 cents each, or alternatively, under subheading

9615.11.3000, HTSUSA, providing for other combs valued over \$4.50

per gross.

The \"Minnie \'N Me\" Vanity Set consists of two components.

One component is a hair brush and mirror item. On one side is a

heart shaped mirror approximately two and a half inches in width

by three inches in length. Directly below is a plastic replica

of Minnie Mouse. Both are embedded in plastic. On the other

side of the plastic is a heart shaped hair brush with bristles

approximately two and a half inches in width by three inches in

length. A flat handle, about four inches long, lies below the

bristles enabling the child to use the item as a hair brush.

The other component is a comb approximately six and a half

inches in length by two inches in width. Both components are

packaged and sold together in a box accompanied by a punch-out

\"Minnie \'N Me\" logo. The back of the box includes cleaning

instructions for the brush and comb.

ISSUE:

Whether the \"Minnie \'N Me\" Vanity Set is a set for tariff

purposes and is classifiable as a toy under heading 9503, HTSUSA,

or alternatively, by its individual components: a plastic comb

under heading 9615, HTSUSA; brush under heading 9603, HTSUSA; or

plastic mirror under heading 3924, HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI\'s) taken in their

appropriate order provide a framework for classification of

merchandise under the HTSUSA. The majority of imported goods are

classified by application of GRI 1, that is, according to the

terms of the headings of the tariff schedule and any relative

section or chapter notes. In the event that the goods cannot be

classified solely on the basis of GRI 1, and if the headings and

legal notes do not otherwise require, the remaining GRI\'s may

then be applied.

Heading 9503, HTSUSA, pertains in part, to \"other toys\"

(besides wheeled toys and dolls). The Explanatory Note to

Chapter 95, HTSUSA, indicates that \"this chapter covers toys of

all kinds whether designed for the amusement of children or

adults.\" The phrase, \"designed for the amusement of\" is

generally understood to indicate that one considers the use of

the article when classifying it as a toy.

-3-

Additional U.S. Rule of Interpretation 1(a), HTSUSA,

provides that, absent language to the contrary, the following

applies:

\[A\] tariff classification controlled by use (other than

actual use) is to be determined in accordance with the

use in the United States at, or immediately prior to,

the date of importation, of goods of that class or kind

to which the imported goods belong, and the controlling

use is the principal use;\....

Therefore, in order to be classified as a toy, the \"Minnie \'N Me\"

Vanity Set would need to be principally used for amusement.

Customs defines principal use as that use which exceeds each

other single use of the article (HRL 088694). In this case, the

principal use of the item will not be as a toy.

The court stated in Ideal Toy Corp. v. United States, 78

Cust. Ct. 28, C.D. 4688 (1977), \"when amusement and utility

become locked in controversy, the question becomes one of

determining whether the amusement is incidental to the

utilitarian purpose, or the utilitarian purpose is incidental to

the amusement.\" The \"Minnie \'N Me\" Vanity Set is primarily

designed to enhance the grooming and personal appearance of a

child. The brush and mirror component is not flimsily

constructed as is a toy or article for amusement. The character

imprint of Minnie Mouse serves only a decorative role.

One may contrast the \"Minnie \'N Me\" Vanity Set with the

merchandise that was the subject in HRL\'s 082974 and 082991.

Those HRL\'s involved combs and mirrors of a limited functional

capacity, in toy sets which included other articles, such as toy

jewelry and make-up, designed to amuse the child. For these

reasons, the \"Minnie \'N Me\" Vanity Set does not qualify as a toy

under 9503, HTSUSA. Consequently, we must classify the vanity

set elsewhere.

As discussed, supra, the vanity set consists of several

components. One may classify these components as follows: the

plastic comb under subheading 9615.11.3000, HTSUSA; the hair

brush under subheading 9603.29.8000, HTSUSA; and the plastic

mirror under subheading 3924.90.5000, HTSUSA. In accordance with

GRI 6, GRI 3(a) explains, in pertinent part, that:

\[W\]hen goods are prima facie, classifiable under two or

more \[sub\]headings, the articles are to be classified

under the \[sub\]heading which provides the most specific

description of the good in question. All \[sub\]headings

are regarded as equally specific, however, when each

refers to part only of the items in a set put up for

retail sale\....

-4-

Therefore, we must now determine whether the vanity set qualifies

as a set put up for retail sale. To this end, Explanatory Note X

to GRI 3(b) provides that 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;

\(b\) 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 vanity set meets the criteria for classification as a set

since: (a) the comb, brush and mirror are classifiable in

different subheadings; (b) the merchandise consists of items sold

together to enhance a child\'s personal appearance and grooming;

and (c) the set is packaged in a carton ready for direct sale to

consumers without any repacking.

For these reasons, the \"Minnie \'N Me\" Vanity Set is

classifiable as a set. Since the three subheadings mentioned

above refer only to part of the items in the set put up for

retail sale, we must attempt to classify the set pursuant to GRI

3(b) which provides, in pertinent part, that 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.

Explanatory Note VIII to GRI 3(b) provides that essential

character may be determined by the nature of the material or

component, its bulk, quantity, weight or value, or by the role of

constituent material in relation to the use of the goods.

Although the brush has the greatest value of the components, this

alone is not dispositive of essential character. In fact, some

of the brush\'s bulk and weight is derived from the attached

mirror. The comb significantly provides bulk and weight to the

vanity set as well. Furthermore, based on use, no one component

of the vanity set imparts essential character. The packaging

carton, for instance, refers to a brush/mirror component and a

comb component which further illustrates the difficulty in

deeming the brush to represent essential character.

-5-

Therefore, we must turn our focus to GRI 3(c) which explains

that when goods cannot be classified by reference to 3(a) or

3(b), they shall be classified under the \[sub\]heading which

occurs last in numerical order among those which equally merit

consideration. According to GRI 3(c) this item is classifiable

under subheading 9615.11.3000, HTSUSA; the provision which occurs

last in numerical order.

HOLDING:

The \"Minnie \'N Me\" Vanity Set is properly classified under

subheading 9615.11.3000, HTSUSA, which provides for combs, hair-

slides and the like\...; of hard rubber or plastics: combs: valued

over \$4.50 per gross: other (than hard rubber). The general

column one rate of duty is 28.8 cents/gross + 4.6 percent ad

valorem.

The protest should be denied with respect to entries xxxxxxx

and xxxxxxx, which were properly classified. The protest should

be allowed in full for the remaining entries. A copy of this

decision with the Form 19 should be sent to the protestant.

Sincerely,

John Durant, Director

Commercial Rulings Division