In NY N302853, Customs and Border Protection (CBP) discussed the classification of a product called the “Moby Dick Bath Time Essentials Kit,” which included four items: a kneeler, elbow rest, rinser and spout cover. All of these items are packaged together in a box marketed for retail sale.

  • The kneeler is made of a textile neoprene cover with a foam insert that is cut and sewn in the shape of a whale. The kneeler is used to support parents’ knees during children’s bath time.
  • The elbow rest is made of a textile neoprene fabric cover with a foam insert that is cut and sewn to resemble waves. There is a woven strap sewn on one side and additional foam padding on the top surface area. The elbow rest is placed on the edge of the bath tub to rest elbows and forearms when leaning on the edge of the bath tub during bath time.
  • The rinser is made of molded plastic in the shape of a whale. The “tail” of the whale is shaped into a handle and the “head” is open so that water can be held and poured to rinse children off before getting out of the bath tub.
  • The spout cover is made of molded plastic in the shape of a whale. The “tail,” front and top of the whales “head” all have openings to permit the spout to fit over the faucet and allow the water to flow, and still be able to access the controls of the faucet.

Explanatory Note (EN) X to General Rule of Interpretation (GRI) 3(b) provides: “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 end users without repacking (e.g., in boxes or cases or on boards).”

CBP determined that the “Moby Dick Bath Time Essentials Kit” fulfills the requirements listed above. In determining the essential character various factors may be used to determine the component which imparts the essential character to the set. There are two plastic products classified in heading 3926, HTSUS (other articles of plastics) and two textile neoprene products classified in heading 6307, HTSUS (other made up articles of textile). GRI 3(b) states:

“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”

In this case, CBP found that the essential character of the overall product could not clearly be attributed to either material. GRI 3(c) states:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration”. Heading 6307, HTSUS appears last in the tariff.

CBP determined that the applicable subheading for the “Moby Bath Time Essentials Kit”, will be classified in subheading 6307.90.9889, HTSUS, which provides for other made up textile articles, other. The rate of duty will be 7% ad valorem.