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HQ 955915


March 28, 1994

CLA-2 CO:R:C:T 955915 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.32.2000

Kenneth S. Horowitz, Esq.
Gibney Anthony & Flaherty
665 Fifth Avenue
New York, NY 10022-5305

RE: Request for reconsideration of New York Ruling (NYR) 892946; plastic pouch with plastic loop and string; articles normally carried in the pocket or purse may be incidentally worn on the person; HQ 082665; subheading 4202.32.2000, HTSUSA

Dear Mr. Horowitz:

This is in response to your letter, on behalf of your client, Fantasia Accessories, Ltd., dated January 14, 1994, requesting reconsideration of New York Ruling Letter 892946, dated December 21, 1993. A sample was submitted to this office for review.

FACTS:

The submitted sample is a novelty purse in the image of a lamb, constructed of plastic sheeting with heat sealed edges and a self material tongue and groove closure with a metal slider. It has a knotted shoe string-like cord looped through a small hole perforated at the top of the head. The item can be easily separated from, and reattached to, the cord. Our measurements of the sample are approximately 6-3/4 inches in length by 3-1/2 inches in width.

You state in your letter that NYR 892946 erroneously classified the subject sample in subheading 4202.32, HTSUSA, as an article of a kind normally carried in the pocket or in a handbag. You claim that proper classification for the merchandise is in heading 7117, HTSUSA, which provides for imitation jewelry, for the following reasons:

1. the plastic loop and textile string indicates that the item was "designed" to be worn around the neck;

2. the measurements of the item, ranging from 6 inches in length by 5 inches in width, to 9 inches in length by 4 inches in width, do not allow the item to fit into the pockets of a child;

3. the pouch is extremely tight, making it difficult for items to be either placed in, or retrieved from, the pouch; and,

4. the zipper is very difficult to move.

ISSUE:

What is the proper classification of the submitted merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

The competing provisions for this merchandise are heading 4202, HTSUSA and heading 7117, HTSUSA. Subheading 4202.32, HTSUSA, provides for, inter alia, articles of a kind normally carried in the pocket or handbag. Subheading 7117.90, HTSUSA, provides for, other imitation jewelry. Of particular importance is Note 3(d) to chapter 71, HTSUSA, which states:

This chapter does not cover:

Handbags or other articles of heading 4202 or articles of heading 4203;

GRI 1 mandates that whenever possible, a classification determination is to be based on the language of the headings and/or chapter notes. Only when the item cannot be thus classified should other GRI's be consulted. Accordingly, in consideration of the above headings we must consider whether the instant sample can be identified by the description in heading 4202, HTSUSA, i.e., an article normally carried in the pocket or handbag.

To address your first point, the fact that the item has both a hole perforated at the top and a shoe string-like cord, is not conclusive that the item is "designed" for use as jewelry, i.e., in this case, a necklace. It is equally important to note that the item also has a self material tongue and groove closure with a metal slider, creating a pouch wherein items may be carried. It is optional to the user as to whether the item will be worn on the wearer or carried by the wearer in a pocket or handbag.

HQ 088665, dated June 14, 1991, regarded the classification of a "wrist rascal" pouch in the image of a baby chick. The torso of the chick was stated to be a pouch "designed" to be worn about the wrist, as indicated by the straps in the shape of wings extending from each side of the torso of the chick and fastening about the wrist. Customs held that the item's classification was not determined by its animal shape, but by the provisions of the tariff which accurately described the functional use of the item. Thus, the item was classified in heading 4202, HTSUSA, as an article of a kind normally carried in the pocket or handbag.

In HQ 085845, dated June 27, 1990, regarding the classification of a wrist sport stash similarly "designed" to be worn on the wrist, Customs noted that the HTSUSA does not contain the word "design" and that:
the HTSUSA provision merely requires that an item be "of a kind normally carried in the pocket or in the handbag." Such use of the word "normally" does not exclude those items which usually are carried in the pocket or handbag but are adapted to be worn on the person.

In HQ 085845, reference was made to an earlier ruling, HRL 082265, dated March 20, 1989, regarding the classification of a ski wallet with a textile braided neck strap. HRL 082265 held that though the ski wallet was not meant to be carried in the pocket or handbag, it was an article of a kind that would normally be carried in the pocket or handbag. Accordingly, the ski wallet was classified in heading 4202, HTSUSA. (See, HQ 083992, dated April 24, 1992, regarding a nylon neck pouch "designed" to be worn around the neck by means of a braided textile cord and HQ 088145, dated February 26, 1991, regarding a neck money belt attached to a small cord dropped over the neck, which similarly held that though the items clearly were designed to be worn around the neck, they were nevertheless classifiable in heading 4202, HTSUSA, as articles of a kind normally carried in the pocket or handbag.)

Secondly, the size of the subject sample does not bar the item, per se, from classification as an item normally carried in the pocket or handbag. You state that the item is clearly intended for children and that the pockets of children's clothing, in depth, usually measure less than those of an adult's (approximately six to eleven inches). Though this might be true, it is also equally apparent that children's clothing is different in styling and construction than those of an adult. While an adult's garments characteristically feature few
pockets of small depth, a child's garments usually feature several pockets, distributed randomly, with or without closures and of varying depths. A quick glance through the children's department of many retail and department stores reveals many such jumpers, overalls, jackets, and jeans with the "multi-pocket" look, commonly worn by children.

Furthermore, you state that the pouch is extremely tight and that it would be unreasonable to place or retrieve items from inside. You add that there is difficulty removing the large pony tail holders which are placed inside the pouch and that small coins would be even harder to remove by a child's small hands. As a result, you state that, "once purchased, the pouch will be emptied of its contents, and subsequently worn around the child's neck as a necklace, and will remain empty for the remainder of its useful life." Upon examining the item we found it neither "unreasonable" nor "difficult" to place or retrieve the ponytail holders or coins from the pouch. The ponytail holders are large enough that they can easily be placed inside or retrieved from the pouch, even by a child. In the case of the smaller coins, even assuming that the child's fingers could not reach to the depths of the subject sample, this would not prevent the child from tilting the item so that the coins could slide to the aperture. It also seems contrary to reason to produce these items featuring a pouch which in essence holds ponytail holders (thereby suggesting to the user that the purpose of the item is for the carrying of small articles), but to then argue that the pouch is actually unreasonable to use and to further assume that the child will empty it of its contents whereupon the item "will remain empty for the remainder of its useful life."

Lastly, we do not agree that the zipper is difficult to move and that as a result, a child will leave the pouch closed. The zipper (as well as the pouch) is easily accessible. This item, in our opinion, is practical and useful for those young pre-school, kindergarten or first grade students, for use as a purse to hold coins to purchase milk or cookies during school time. Whether a child will opt to wear it around his/her neck will be up to the individual child. Regardless of the outcome, that is, whether it will be used as a necklace or a purse, this does not ultimately detract from what is, in our opinion, the item's practical function as a purse, similar to a wallet or coin purse, and accurately described by the provisions of heading 4202, HTSUSA.

Given the above, this office concludes that the item's purpose is primarily functional in nature and that NYR 892946 correctly classified the item in heading 4202, HTSUSA, as an article normally carried in the pocket or handbag.

HOLDING:

The sample item is classifiable in subheading 4202.32.2000, HTSUSA, which provides for an article of the kind normally carried in the pocket or handbag, with an outer surface of sheeting of plastics. The applicable rate of duty is 20 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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