HQ 954028: "Floating Soap Dish" Objects (with Batman and Ninja Turtles Themes) Retail Packaged with Bars of Soap; Not Sets

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 954028

                         August 17, 1993


CLA-2  CO:R:C:F  954028  GGD

CATEGORY:  Classification

TARIFF NO.:  9503.90.60; 3401.11.50

Mr. Ernest Ferrante
Kuehne & Nagel, Inc.
10 Exchange Place - 19th Floor
Jersey City, New Jersey 07302

RE:  "Floating Soap Dish" Objects (with Batman and Ninja Turtles
     Themes) Retail Packaged with Bars of Soap; Not Sets

Dear Mr. Ferrante:

     This letter is in response to your inquiry of April 28,
1993, on behalf of your client, Tsumura International, Inc.,
concerning the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of floating
soap dish toys (with "Batman" and "Teenage Mutant Ninja Turtles"
themes) and bar soap, imported from China.  Sample articles were
submitted with your inquiry. 

FACTS:

     The first sample article consists of an unbreakable, molded,
non-toxic vinyl, floating object, which resembles the batmobile. 
The item measures approximately 7 inches by 3 inches by 1-1/2
inches, and has an open compartment in the rear holding 3 "mini
soap" bars standing together on their ends.  Each bar of soap
measures approximately 2-1/4 inches by 1-1/4 inches by 1/4 inch.

     The second sample article also consists of an unbreakable,
molded, non-toxic vinyl, floating object, which resembles a
camouflaged dinghy, operated by a ninja turtle whose head, upper
torso, and arms are visible.  An open compartment resembling a
motor at the stern, holds 3 "mini soap" bars standing on their 
                               -2-

ends, each having the same measurements as the bars of soap noted
above.  Neither of the floating objects is configured in a manner
that would allow it to function as an actual soap dish since the
compartments are too small to hold even a small bar of soap
placed horizontally.  

ISSUES:

     1) Whether the floating components of the articles should be
classified as soap dishes, or as other toys.

     2) Whether the individual components comprising the articles
should be classified separately, or as sets.

LAW AND ANALYSIS:

     Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs).  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 GRIs 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 GRIs.

     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 certain toys may be capable of a
limited "use," but are generally distinguishable from real
machines, instruments, etc., by their size and limited capacity. 
These floating objects are distinct from utilitarian bath
products.  Their features are designed to amuse children.  The
features would be less amusing, perhaps unrecognizable (as the
batmobile and a turtle-piloted dinghy), if also designed to hold
bars of soap as real soap dishes do.  Thus, the floating
components are properly classified as toys. 
                               -3-

     The ENs also relate that certain toys are often put up in
sets.  In this case, the articles each consist of two components,
i.e., a toy and bars of soap.  Each component is classifiable in
a different heading; the toy in heading 9503, HTSUSA, and the
soap in heading 3401, HTSUSA, which provides for "Soap...in the
form of bars, cakes, molded pieces or shapes...."  While the ENs
to heading 9503 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 items must be put up
in a form which clearly indicates their use as toys.  Although
one of the individual components is a toy, putting up the toy and
soap for sale does not indicate that the whole article is to be
used as a toy.  Thus, the article may not be classified pursuant
to GRI 1 as toys put up in a set.

     Since the articles cannot be classified by reference to GRI
1, we look to GRI 2(b), which in pertinent part states that:

          [t]he classification of goods consisting of more than
          one material or substance shall be according to the
          principles of rule 3.    

     GRI 3(a) directs that the headings are regarded as equally
specific when each heading refers to only part of the composite
article.  Therefore, to determine under which provision the
article will be classified, we look to GRI 3(b), which states
that:

          [m]ixtures, composite goods consisting of different
          materials or made up of different components...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.

Explanatory Note VIII to GRI 3(b) provides the following guidance
concerning the essential character determination:

          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. 
                               -4-

     In discerning whether the criterion used to determine
essential character is applicable to the individual components in
this case, we look to Explanatory Note IX to GRI 3(b), which
states that for composite goods with separable components, the
"components are adapted one to the other and are mutually
complementary and that together they form a whole which would not
normally be offered for sale in separate parts."  Explanatory
Note X(b) to GRI 3(b) relates that:

          For the purposes of this Rule, the term "goods put up
          in sets for retail sale" shall be taken to mean goods
          which: 

               consist of products or articles put up together to
               meet a particular need or carry out a specific
               activity....

     The substance of Explanatory Notes VIII, IX, and X(b) to GRI
3(b) indicates that the dissimilarity of the toy and soap
components precludes either item from providing the whole article
with its essential character.  The components, as entered, are
not mutually complementary, not adapted to one another, and are
not put up to meet a particular need or carry out a specific
activity.  Therefore, each individual component is separately
classifiable. 

HOLDING:

     The toy and soap components of the "Floating Soap Dish"
objects, packaged together for retail sale, are separately
classified as follows: 

The floating toys (with "Batman" and "Teenage Mutant Ninja
Turtles" themes) are properly classified in subheading
9503.90.60, HTSUSA, the provision for "Other toys...and
accessories thereof: Other: Other: Other toys (except models),
not having a spring mechanism."  The general column one duty rate
applicable to this merchandise is 6.8 percent ad valorem.

The "mini soap" bars are properly classified in subheading
3401.11.50, HTSUSA, the provision for "Soap...: Soap and organic
surface-active products and preparations, in the form of bars,
cakes, molded pieces or shapes...: For toilet use (including 
                               -5-

medicated products): Other."  The general column one duty rate
applicable to this merchandise is 1.1 cents per kilogram plus 3.6
percent ad valorem.
 
                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division