Classification of the Wee Believers “My Mass Kit”NY N048904 Revoked

HQ H061204 May 3, 2011 OT: RR: CTF: TCM: H061204 DAC CATEGORY: Classification TARIFF NO.: 9503.00.0080 Sandy Wieckowski, Manager Expeditors Tradewin, LLC 1101 Metro Airport Center Drive Bldg. M2, Suite 110 Romulus, MI 48174 RE: Classification of the Wee Believers “My Mass Kit” NY N048904 Revoked Dear Ms. Wieckowski: This is in response to the March 24, 2009 request for reconsideration of New York Ruling Letter (“NY”) N048904, which you submitted on behalf of Troparian Corporation d/b/a Wee Believers. The U.S. Customs and Border Protection (“CBP”) National Commodity Specialist Division issued NY N048904 on February 6, 2009 which addressed the tariff classification of the Wee Believers “My Mass Kit” from Thailand. CBP has determined that NY N048904 is incorrect and is revoking that ruling. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, a notice of proposed revocation was published in the Customs Bulletin and Decisions, Vol. 44, No. 24, on June 9, 2010. No comments were received in response to the notice. FACTS: Wee Believers provided a sample of the “My Mass Kit” which consists of a zippered carrying case marked “my Mass Kit.” The case contains four mesh pockets which are designed to carry an instruction booklet and twelve toys. The toys are in the shapes of a corporal, a chalice, a crucifix, a censer, a bowl, a paten, a purificator, two candles, two cruets, and EVA hosts. Most of the kits twelve toys are made of cotton twill with polyester fill. The kit is packaged in a cardboard sleeve. The “My Mass Kit” is designed to be used as a vocational tool for children between the ages of three and twelve to learn about the parts of the Catholic Mass, identify liturgical objects, and learn about the Catholic priesthood. Wee Believers suggests that the “My Mass Kit” can be used during church services to keep children quiet, busy, and focused on the Mass rather than playing with non-church related books or toys and at home or in school where parents and teachers can use the kit to teach children about the Catholic Faith. In NY N048904, CBP classified the toy components of the “My Mass Kit” under subheading 9503.00.0080, of the Harmonized Tariff Schedule of the United States (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, Other” and has a “free” rate of duty. In the same ruling, CBP classified the carrying case component of the “My Mass Kit” under subheading 4202.12.8030, HTSUS which provides for “Trunks, suitcases, vanity cases, attache 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: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of plastics or of textile materials: With outer surface of textile materials: Other, Attache cases, briefcases, school satchels, occupational luggage cases and similar containers: Other: Of man-made fibers” and has a rate of duty of 17.6% ad valorem. While NY N048904 made no mention of the classification of the instruction booklet, we note that it should be classified in heading 4901, HTSUS which covers printed books, brochures, leaflets, and similar printed matter. ISSUE: What is the classification the Wee Believers “My Mass Kit” under the HTSUS? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings, any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level (for the four digit headings and the six digit subheadings) and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. While neither legally binding nor dispositive of classification issues, the ENs provide commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). Goods that are, prima facie, classifiable under two or more headings, are classifiable in accordance with GRI 3. GRI 3(a) states in part that when two or more headings each refer to a part of the item in a set put up for retail sale, those headings are to be regarded as equally specific, even if one heading gives a more precise description of the goods. The “My Mass Kit” must be classified pursuant to GRI 3 because it consists of at least three different articles that are, prima facie, classifiable in different headings; the carrying case is classifiable in heading 4202, HTSUS, the instruction booklet is classifiable in heading 4901, HTSUS, and the toys are classifiable in heading 9503, HTSUS. The headings at issue only refer to part of the items in the set put up for retail sale. As such, they are regarded as equally specific and we must resort to GRI 3(b). EN X to GRI 3(b) provides guidance for determining whether the “My Mass Kit” constitutes “goods put up in sets for retail sale.” 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 . . .; (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). In addition, CBP has generally interpreted EN X to GRI 3(b) to mean that, in most instances, a holder, case, or other container is included with other articles which clearly meet a particular need or carry out a specific activity when classified. See U.S. Customs and Border Protection, What Every Member of the Trade Community Should Know About: Classification of Sets Under the HTSUS (Mar. 2004). The “My Mass Kit” consists of a case, an instruction booklet, and toys which are prima facie classifiable in three different headings.  In addition, the “My Mass Kit” consists of products put up together to carry out a particular activity.  All of the articles in the “My Mass Kit” interact with each other to provide a tool for teaching children about the Catholic Mass and to keep children quiet and occupied during Mass.  With regard to the carrying case, Wee Believers notes that the instruction booklet included in the kit instructs children to use the case as the altar when reenacting the Mass.  Just like the other items in the kit, the carrying case is intended to teach children about the Mass through play, which demonstrates further that the kit consists of articles put up together to meet a particular need or carry out a specific activity. Lastly, the kit, which comes packaged in a cardboard sleeve, is put up in a manner suitable for sale without repackaging.  Consequently, the “My Mass Kit” constitutes a good put up in a set for retail sale. GRI 3(b) requires that the classification of goods put up in sets for retail sale be based upon the material or component that provides the set with its essential character. EN VIII to GRI 3(b) explains that: “[t]he 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 the constituent material in relation to the use of the goods.” In addition to the guidance provided by EN VIII to GRI 3(b), courts frequently consider the role of the constituent materials or components in relation to the use of the goods to determine essential character. See Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (CIT 2005); Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (CIT 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). In determining the essential character of the “My Mass Kit,” we must consider the roles the case, the instruction booklet, and the toys play in relation to the ultimate purpose of teaching children about the Catholic Mass and keeping children quiet and occupied during Mass. In this case, not only are the toys more bulky and more numerous than the case and the instruction booklet but the role of the toys in the “My Mass Kit” is much more important in meeting the overall purpose of the “My Mass Kit.” Purchasers of the “My Mass Kit” could not meet the ultimate goal of teaching children about the Catholic Mass or keeping them occupied during Mass if the set did not contain the toys. Furthermore, the case in the “My Mass Kit” is similar to the carrying case made for slippers classified in NY H83958 inasmuch as its purpose is to store the toys and instruction booklet inside when they are not in use. Consequently, the essential character of the “My Mass Kit” is that of a toy classifiable under heading 9503, HTSUS. HOLDING: By application of GRI 3(b), the “My Mass Kit” is classified in heading 9503, HTSUS. It is specifically provided for in subheading 9503.00.0080, 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, Other.” The “My Mass Kit” general rate of duty is free under the 2011 HTSUS schedule. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov. EFFECT ON OTHER RULINGS: NY N048904, dated February 6, 2009, is hereby REVOKED. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin and Decisions. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division