HQ 952894: Decision on Application for Further Review of Protest No.3901-92-101204, filed September 3, 1992, concerning theclassification of a plastic combat set and a plastic cowboy andIndian set

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952894

                        September 9, 1993


CLA-2  CO:R:C:F  952894  GGD

CATEGORY:  Classification

TARIFF NO.:  9503.70.80; 9902.71.13

District Director of Customs
619 South Canal Street, Suite 217
Chicago, Illinois 60607

RE:  Decision on Application for Further Review of Protest No.
3901-92-101204, filed September 3, 1992, concerning the
classification of a plastic combat set and a plastic cowboy and
Indian set

Dear Sir:

     This is a decision on a protest filed September 3, 1992,
against your decision in the classification and liquidation of
plastic combat sets and plastic cowboy and Indian sets from
China.

FACTS:

     You classified the merchandise under subheading 9503.70.80,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), the provision for other toys, put up in sets.  The
protestant claims, through counsel, that the merchandise should
be classified under subheading 9503.90.60, HTSUSA, the provision
for other toys, not having a spring mechanism; and that the goods
should be duty-free under subheading 9902.71.13, HTSUSA, the
provision for articles of heading 9503, valued not over 5 cents
per unit.  

     The sample articles submitted, identified as item nos. 04427
(20 soldiers, 2 tanks, 1 jeep, and one helicopter, all plastic
and small in size) and 04428 (10 Indians, 6 horses, and 6
cowboys, all plastic and small in size), are imported in clear
plastic packages measuring approximately 6 inches by 11 inches,   -2-  

with paperboard headers that are perforated for hanging display. 
The soldiers, cowboys, and Indians have various positions and
weapons.

ISSUES:

     Whether the articles should be classified in subheading
9503.70.80, HTSUSA, the provision for other toys put up in sets,
or in subheading 9503.90.60, HTSUSA, the provision for other toys
not having a spring mechanism.

     Whether, for purposes of duty-free treatment under
subheading 9902.71.13, HTSUSA, the term "unit" means each
separate article or individual toy comprising a toy set, or means
the entire retail package of a toy set.

LAW AND ANALYSIS:

     Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRI's).  The systematic
detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
Section or Chapter Notes.  In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI's may
then be applied.  The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.

     The proper heading in this case is clear, i.e., heading 9503
for toys.  The subheadings at issue essentially differentiate
between toys that are put up in sets, and toys which do not make
up sets.  

     Through counsel, the protestant notes that "sets" are
specifically mentioned in GRI 3, are comprised of goods put up to
meet a particular need or accomplish a specific activity, and are
packaged for retail sale.  The protestant asserts that for
purposes of, and explicit throughout, the HTSUS, the concept of
"sets" requires that the goods comprising any set, be of two or
more headings or subheadings.  Protestant points out numerous
headings and subheadings in several chapters of the HTSUS, in
which the diverse goods making up certain sets, including toy
chemistry and sewing sets, support protestant's assertion.    -3-

     Heading 9503, HTSUSA, applies to "other toys," i.e., all
toys not specifically provided for in the other headings of
chapter 95.  Although the term "toy" is not defined in the
tariff, the EN to chapter 95 indicates that a toy is an article
designed for the amusement of children or adults.  The ENs to
heading 9503 indicate that, among other toys, the heading covers
"[t]in soldiers and the like, and toy armaments."  The ENs relate
that certain toys, including "toy arms...tin soldiers, etc." are
often put up in sets.  

     Although the ENs further indicate that toy sets may be
comprised of collections of articles, the individual items of
which, if presented separately, would be classified in other
headings (e.g., toy chemistry and sewing sets), such articles are
not the subject of this protest.  While those separately
classifiable items must be put up in a form which clearly
indicates their use as toys, the subject items are toys, are
designed to amuse, and individually would be classified only in
heading 9503.  Collectively, these toys complement each other and
are readily combined to represent or accomplish the myriad
scenarios, missions, or battles created and carried out by a
child at play.  

     A condition precedent to the application of GRI 3 with
respect to sets is that there be at least two different articles
which are prima facie classifiable in different headings.  Unless
this condition is met, the analysis directed by GRI 3 is not
triggered.  The subject items clearly comprise toy sets without
the analysis protestant draws from GRI 3, while asserting its
applicability to the classification of all sets.  Only reference
to GRI 1 is necessary here.  It is our determination that the
subject items are collections of toys put up in sets, and are
classifiable by GRI 1 in subheading 9503.70.80, HTSUSA.

     With respect to whether the term "unit" means each
individual toy comprising a toy set, or means the entire retail
package containing a toy set, protestant relies upon Mattel, Inc.
v. United States, Appeal No. 90-1279 (Fed. Cir., decided February
13, 1991).  In reversing the decision of the U.S. Court of
International Trade, the Court of Appeals for the Federal Circuit
interpreted the term "unit" in item 912.20 Tariff Schedules of
the United States (TSUS), to mean each separate article or
individual toy, rather than meaning "retail package."    -4-

     The protestant points out that the text of the TSUS duty
exemption (item 912.20) is essentially identical to the text of
the corresponding HTSUS exemption, subheading 9902.71.13 (which
provides in pertinent part that, if subject to a general column
one rate of duty, articles [except parts] provided for in heading
9503, valued not over five cents per unit, are duty free). 
Protestant contends that in light of the identical provisions,
there can be no doubt that the appellate court would apply the
same definition of "unit" to the individual toys of this case,
and that there is no legal or logical basis for Customs to find
the Court's definition of "unit" inapplicable to the merchandise
in this case.    

     While there may have been some legal or logical basis to
Customs position in the Mattel case, as evidenced by the decision
of the trial court and the dissenting judge on the appellate
court, we are obliged to determine whether the logic of the
majority in the Mattel case applies to the facts of the present
protest.  Upon consideration it appears that the now-expired,
temporary duty-free provision in subheading 9902.71.13, provides
for a wide variety of articles valued not over 5 cents per unit. 
If the retail package or the condition as imported is not
relevant to the application of this subheading, as the Mattel
appellate court majority seems to suggest, then this subheading,
with virtually identical language to the provision under
consideration in Mattel, supra, would likewise apply.

HOLDING:

     The plastic combat set and plastic cowboy and Indian set are
classifiable in subheading 9503.70.80, HTSUSA, as "Other
toys;...Other toys, put up in sets or outfits, and parts and
accessories thereof: Other: Other."  The general column one rate
of duty is 6.8 percent ad valorem.

     With respect to the application of subheading 9902.71.13,
HTSUSA, Customs here interprets the term "unit" to mean the
separate articles or individual toys which comprise the toy sets. 
Duty-free treatment of the toy sets is determined accordingly and
does apply to the subject merchandise.

     The protest should be denied as to the chapter 95
classification, but should be allowed with respect to the chapter
99 claim, with corresponding refund.  A copy of this decision
should be attached to the Form 19 to be returned to the
protestant.

                               Sincerely,


                               John Durant, Director