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.

HQ H337372 July 26, 2024 OT:RR:CTF:CPMMA H337372 NAH CATEGORY: Classification TARIFF NO.: 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 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; a carabiner clip; themed post cards; themed sticky notes; a miniature, plastic, themed plastic, zip-lock pen bag; a miniature themed notebook; 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; 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; 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; a miniature, plastic, themed plastic zip-lock pen bag; small pink hair tie; a small, themed mirror; and a small nail file. 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; 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; 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; 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; 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; 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; miniature themed water bottle; 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 i