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HQ 963478




May 30, 2001

CLA-2:RR:CR:TE 963478 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.32.9550

Mr. Herbert J. Lynch, Esq.
Sullivan & Lynch, P.C.
156 State Street
Boston, MA 02109-2508

RE: Request for Reconsideration of NY D85092, dated December 12, 1998; Tariff Classification of Novelty Coin Purse Made in China.

Dear Mr. Lynch:

On December 21, 1998, New York Ruling Letter (NY) D85092 was issued to your client, Leisure Products, Inc., in response to their request for a binding ruling on the tariff classification of a child's novelty coin purse. In that ruling, the novelty coin purse was classified under subheading 4202.32.9550, of the Harmonized Tariff Schedule Annotated (HTSUSA), which provides for articles of a kind normally carried in the pocket or in the handbag, with outer surface of textile materials, other, of man-made fibers. Initially, one sample, style 33611, was submitted to Headquarters for review. Subsequently, counsel submitted another style for review.

FACTS:

The sample, style 33611, is described as a plush bean bag face. It is a stuffed cow’s head with comical features. The interior of the head consists of a pouch surrounded by fiberfill. The pouch is approximately three inches deep and two inches wide. The opening of the pouch is approximately 1 ¼ inch wide and extends along the top of the cow’s head. The opening is closed by means of a plastic zipper with a relatively large zipper pull. The pouch can easily hold five dollars worth of quarters and is capable of holding up to six dollars worth of quarters. Attached to the zipper pull is a metal split ring that has a dog leash clasp attached to it. The dog leash clasp allows the article to be attached to a belt loop, backpack, etc. The coin purse has an exterior surface of 100 percent polyester plush fabric with a textile interior lining. The article under consideration is marketed as a “Bean Bag Face.” It is one of eight characters comprising the “Bean Bag Faces.” The other sample submitted during a meeting with counsel depicts a monkey’s head. It too has comical features and a pouch to carry personal items. The other “Bean Bag Faces” depict animal’s heads except for one that is a smiley face. Marketing materials describe the “Bean Bag Faces” as follows: “These amazing bean bag plush toys are not just cute, cuddly beanie toys. They also double as a purse or coin holder and a keychain.”

ISSUE

Whether the article is a novelty coin purse under heading 4202, HTSUSA, or is a stuffed toy representing animals or non-human creatures, under heading 9503, HTSUSA?

ANALYSIS

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 GRI may then be applied.

Heading 4202, HTSUSA, 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, 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.

Heading 9503.41.0010, HTSUSA, provides, in pertinent part, for:

Other toys; reduced–size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Toys representing animal or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Stuffed toys and parts and accessories thereof Stuffed toys. Legal Note 1(l) to Chapter 42 excludes articles of Chapter 95 such as toys, games or sports equipment. Similarly, legal Note 1(d) to Chapter 95 excludes sports bags or other containers of heading 4202, HTSUSA. Two legal Notes such as these do not mutually exclude each other, but rather instruct that classification be made in the one chapter that properly includes the article under consideration. See Headquarters Ruling Letter (HQ) 088665, dated June 14, 1991. Accordingly, we must determine which Chapter properly includes the article under consideration.

The Harmonized Commodity Description and Coding System, Explanatory Notes (EN), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive or legally binding, 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).

Although the term "toy" is not defined in the tariff, the EN to chapter 95, HTSUS, state, in pertinent part, that "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys", this term has been interpreted by Customs as equating "toys" with articles "designed for the amusement of children and adults."

In the tariff context, "amuse" is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. It has been Customs position that the "amusement" requirement means that a toy should be designed and used principally for amusement and should not serve a utilitarian purpose. In this case, the utilitarian function of the articles is not merely incidental. Instead, the manufacturer expended additional cost and effort to construct the article so that it has a pouch with a zipper, and so that it can be easily carried by a young child by means of the dog leash clasp.

While the comical features of the “Bean Bag Faces” are entertaining, the Bean Bag Faces have little play value. Moreover, “Customs has ruled on several occasions that articles having toy like features such as animal shapes are not classified as toys, but in provisions that recognized their use as functional items despite a novelty appearance (for example, backpacks and sleeping bags).” HQ 088665, dated June 14, 1991.

In HQ O88665, Customs ruled that a “Wrist Rascal” was a novelty coin purse classifiable under heading 4202, HTSUSA. The “Wrist Rascal” was a full-figured representation of a baby chick worn on the wrist which primarily functioned as a key-case or coin purse. Customs found that the “Wrist Rascal” was not a toy because it was not used for the amusement of children or adults, but rather as a container to carry personal items that had ornamental features. Like the “Wrist Rascal,” the instant article’s primary function is to be a container to carry personal items.

Customs has ruled on similar merchandise that is guiding in this case. In HQ 950752, dated January 9, 1992, Customs considered whether a stuffed animal that had a sealable compartment and that could be worn as a backpack, was a toy or a backpack. Customs reasoned:

Although the whimsical characters are designed to appeal to children, the presence of a functional compartment, shoulder straps and hook and loop closures indicate an intent for use as a carrying case, a use which characterizes the article at issue. The compartment which forms the animal body is functionally relevant and capable of use by a small child for the storing of small toys or supplies.

The primary function of the article under consideration, like that of the stuffed animal backpack, is to act as a container for personal items of a small child, e.g., coins, bills, and keys. Like the stuffed animal backpack, the whimsical nature of the “Bean Bag Faces” is designed to appeal to children, and is outweighed by the item’s utility.

You argue “that examination of the article can only result in a conclusion that whatever utilitarian function the article possesses is secondary and incidental to its primary purpose (i.e. to provide amusement or enjoyment).” In support of your argument, you cite NY C82556, dated December 16, 1997. That ruling involved the classification of a stuffed toy horse attached to a keychain. However, unlike the instant article, the toy horse had a “miniscule pouch,” and consequently it functioned more as a toy than as a container to carry personal items. Customs has ruled that the small carrying capacity of a pouch, due to small size or overstuffing, will reduce the utilitarian value of the item. See, HQ 964737, dated January 4, 2001, (ruling that the small flat pocket on a “Hello Kitty” keychain was insufficient to find that the primary use was that of a novelty coin purse); and HQ 962670, dated April 20, 1999 (ruling that the small pocket on a “Rugrats” doll did not provide sufficient space to find that the article’s primary use was that of a “novelty backpack.”) Unlike those items, the pouch of the instant article is large enough so that its utilitarian value is not diminished.

The EN to heading 9503, HTSUS, indicate that the heading includes toys representing animals or non-human creatures. Customs will classify a stuffed toy representing an animal or non-human creature in subheading 9503.41, HTSUS, if the toy is a reasonably full-figured depiction of the animal's or creature's anatomy that the toy seeks to represent. The representation must be constructed in a sculpted, three dimensional form.

In HQ 957560, dated October 12, 1995, Customs considered the proper classification of “pillow-like articles that are designed and shaped to resemble the heads/faces of the cartoon characters ‘Bugs Bunny’ and ‘Sylvester’ the cat.” Because the articles represented only the heads/faces of animals or non-human creatures, and were not a reasonably full-figured depiction of animal anatomies, Customs found that they were not classifiable in subheading 9503.41, HTSUSA. Likewise, in HQ 958397, dated December 19, 1995, Customs considered the classification of reindeer hats. Customs found that “since the reindeer hats represent only the head or part of the head of a reindeer, they are not classifiable as stuffed toy animals.” Accordingly, because the “Bean Bag Faces” represent only the head and face of animals, and are not full-figured depictions of animal anatomies, they are not classifiable in subheading 9503.41.

In NY D88616, dated March 10, 1999, Customs found that a full body representation of Mickey Mouse was classifiable as a toy under heading 9503, HTSUSA, as opposed to a container under 4202, HTSUSA. The figure was described as being:

Approximately seven inches in height and displays unique Mickey Mouse features such as a comical facial expression, big ears and big feet. The head and feet of the character are stuffed. Mickey’s arms, which are not stuffed, also function as a wrist strap which is secured by means of Velcro attached to each arm. Mickey’s torso is partly a zippered compartment or pouch designed for children who us it to store their belongings such as small toys, toy jewelry, candies, etc.

Customs found that the Mickey Mouse toy would be principally incorporated into a child’s play activity and that any utility of the Mickey Mouse toy was incidental to its play value. While the Mickey Mouse toy is similar in certain respects to the cow’s head under consideration, it is distinguishable because of the significant play value that is imparted by the fact that the toy is a full bodied representation of Mickey Mouse. You cite HQ 954131, dated June 4, 1993, and New York Ruling Letter (NY) 813447, dated August 15, 1995, wherein Customs classified candy dispensers consisting of representations of M&M candy that had arms and legs appended to the them. The M & M rulings, like the Mickey Mouse rulings, are distinguishable because of the greater play value imparted by the full bodied representations.

This ruling is consistent with prior rulings on similar articles. See NY D83544, dated February 1, 1999 (Grinch with a 2 ¾” pouch sewn into the back is a coin purse); NY E80540, dated April 20, 1999 (plush duck with a zippered pocket measuring approximately 3 ¾” by 2 ½” sewn into the back is a coin purse); PD D86561, dated February 4, 1999, (6” stuffed animal with pouch and keychain is a coin purse);

You contend that classification of the article under consideration, as an “article of a kind normally carried in the pocket or handbag” is improper because of its size and dimension. In HQ 088665, ruling on the classification of the “Wrist Rascals” coin purse, Customs considered this very issue. Customs stated:

The subject article qualifies as a “similar article” [in heading 4202, HTSUSA] in that it functions much like a key-case, wallet, or coin purse, it holds and transports small articles such as keys, coins, or currency. The HTSUSA does not require that article of this nature be “designed” to be carried on the person. 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.

Applying the reasoning of HQ 088665, the article under consideration, is an “article of a kind normally carried in the pocket or handbag.

HOLDING

The “Bean Bag Face,” style 33611, is classified under 4202.32.9550, HTSUSA, textile category 670, which provides for “Trunks, suitcases . . . knapsacks and backpacks, . . . wallets, purses, of textile materials . . .: Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials: With outer surface of textile materials: Other: Other Of man-made fibers. The general column one rate of duty is 18.3% ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that the importer check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer 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 Commercial Rulings Division


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