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HQ 965132




July 19, 2001

CLA-2 RR:CR:TE 965132 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Ms. Margaret R. Politio
Neville Peterson LLP
80 Broad Street – 34th Floor
New York, NY 10004

RE: Revocation of NY H82079; Classification of Eeyore Clip-On Textile Pouch; Other Textile Articles; Heading 6307; Not Heading 4202; Not Heading 9503.

Dear Ms. Polito:

This letter is in response to your request, dated June 27, 2001, for reconsideration of New York Ruling letter (NY) H82079, dated June 18, 2001, filed on behalf of your client Simon Marketing Inc. The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a clip-on textile pouch in the form of “Eyeore” the Winnie the Pooh character. A sample was submitted for consideration.

After review of NY H82079, it has been determined that the classification of the Eeyore clip-on pouch in heading 4202, HTSUSA, was incorrect. For the reasons that follow, this ruling revokes NY H82079.

FACTS:

The sample submitted is a fabric pouch representing the Winnie the Pooh character, Eeyore. Eeyore is 6 ¾ inches long, and 4 inches high. Attached are two floppy ears and a pink bow at the end of a printed tail. Atop Eeyore’s head is a tufted black fringe. Along the top of Eeyore, where his spine would be, is an opening. The opening has no closure of any kind. A plastic “clip-on” clasp is attached to Eeyore’s rear end. The clip-on is intended to be attached to a child’s belt loop or backpack. When attached, the article hangs vertically, thereby making the opening vertical. This allows whatever contents are inside the pouch to fall out. The simple loop-shaped plastic clip measures approximately 2 inches in length. Due to the shape and thickness of the plastic clip, keys cannot be attached directly to the clip. The clip merely allows the Eeyore clip-on pouch to be attached to items such as a backpack, carry bag or pant belt loop. The merchandise is imported for sale to a restaurant chain which will use the items as part of a promotion.

ISSUE

What is the proper classification of the Eeyore clip-on pouch?

LAW AND 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.

The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), 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 Explanatory Notes, 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.

In NY H82079, Customs classified the Eeyore clip-on pouch under subheading 4202.32.9550, HTSUSA, which provides, in pertinent part, 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.”

You assert that the Eeyore clip-on pouch is properly classified under subheading 9503.49, HTSUSA, which 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: Other.”

Chapter 95, HTSUSA, provides for, among other things, toys. Although the term "toy" is not defined in the tariff, the EN to chapter 95, HTSUSA, 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."

Citing four New York ruling letters, you contend that the Eeyore clip-on pouch is similar to other “clip-on” articles that are classified as toys under heading 9503, HTSUSA. In NY E84689, dated July 28, 1999, Customs classified a stuffed musical bear under heading 9503, HTSUSA, as a toy. In NY D89550, dated April 21, 1999, Customs classified an imitation cellular phone under heading 9503, HTSUSA, as a toy. In NY D88616, dated March 10, 1999, Customs classified a seven inch high representation of Mickey Mouse, whose torso contained a small zipper compartment, under heading 9503, HTSUSA, as a toy. You state that “Customs is clearly aware that children adorn backpacks with clips that feature toys, and that the article at issue is such a clip.” In so stating, you infer that because the Eeyore clip-on pouch is a “clip-on,” it is a toy. However, whether it is a clip-on has no bearing on whether it is classified as a toy.

In order to be classified under heading 9503, HTSUSA, as a toy, the Eeyore clip-on pouch must be “designed for the amusement of children and adults.” You acknowledge that the play value associated with the bear, imitation cellular phone, Furby and Mickey Mouse governed classification of those toys. However, you have not demonstrated that the Eeyore clip-on pouch has any play value. Unlike the Eeyore clip-on pouch, the cited toys all have an element – in addition to their general toy like appearance – that enhances their play value. The bear is not only stuffed, but he is a musical bear and is packaged with a bottle of perfume. The imitation cellular phone possesses buttons that produce sounds of ringing, dialing, etc., when pressed. The Furby is stuffed and contains a rattle inside the item. The Mickey Mouse is a full figured representation and displays unique Mickey Mouse features such as a comical facial expression, big ears and big feet. The Eeyore clip-on textile pouch has none of these features.

The Eeyore clip-on pouch is not a toy because it is not primarily designed for the amusement of children or adults. Unlike the toys that you claim are similar, it has no features that give it any play value. The Eeyore pouch is more similar to two stuffed plush animal heads considered in Headquarters Ruling Letter (HQ) 964737, dated January 4, 2001. The heads represented Hello Kitty characters, were approximately 2.5 inches tall, 2.5 inches wide, 1.5 inches deep, were attached to a plastic clip, and had a small flat pocket on the back of the head with a hook and loop closure. Customs found that the articles are not toys because they are not primarily designed for the amusement of children or adults. The fact that they represent cartoon characters and are intended to be clipped onto the back packs and belt loops of children, does not make them toys. In NY H82079, Customs concluded that the Eeyore clip-on pouch is similar to a spectacle pouch or pocket tissue holder. The EN to heading 4202, HTSUSA, state that the heading covers the specifically named containers and similar containers. The EN to subheadings 4202.31, 4202.32 and 4202.39, HTSUSA, which provide for articles of a kind normally carried in the pocket or in the handbag, specifically state that the subheadings cover spectacle cases. Thus, if the Eeyore clip-on pouch is similar to spectacle cases, it may be covered by heading 4202, HTSUSA.

However, before it is determined whether the Eeyore clip-on pouch is similar to a spectacle case, we must determine whether it is covered by the language of the heading of 4202, HTSUSA. In NY H82079, Customs stated that there is no requirement that goods of heading 4202, HTSUSA, have a closure. While it is true that there is not a closure requirement for goods of heading 4202, HTSUSA, in this case, the lack of a closure prevents the Eeyore clip-on pouch from being classified in heading 4202, HTSUSA.

In Totes, Inc. v. United States, the Court of International Trade (CIT) found that the “essential characteristics and purpose of Heading 4202 exemplars are . . . to organize, store, protect and carry various items.” Totes, Inc. v. United States, 18 Ct. Int’l Trade 919, 865 F. Supp. 867, 871 (1994), aff’d, 69 F.3d 495 (1995). In Rooster Products, Inc. v. United States, Slip Op. 2000-60 (Ct. Int’l Tr. 2000), the CIT found that a leather tool bag composed of open pouches was classified in heading 4202, HTSUSA. The Court rejected the Plaintiff’s argument that the tool belt was designed in a manner that prevented storage or protection of its contents because they would spill out if the bag were turned upside down. The Court reasoned that when worn as intended, the tool bag – which attached to the wearer’s belt – served to protect and store its contents while in use. Id., at 62. Unlike the tool belt in Rooster, the Eeyore clip-on pouch, when worn as intended – clipped to a belt loop or backpack – will spill its contents. Because of its inability to hold its contents, the Eeyore clip-on pouch does not possess the essential characteristics of the exemplars of heading 4202, HTSUSA, i.e., to organize, store, protect and carry various items.

In a letter dated July 9, 2001, counsel for Simon Marketing, Inc. assured Customs that “[t]he backpack clip will not be subjected to further manufacturing/processing after importation into the United States. This assurance was made to address concerns by Customs as to why the Eeyore clip-on pouch was manufactured with a pouch that allowed its contents to spill out. Upon confirmation from counsel that the Eeyore clip-on pouch is a completed article, Customs finds that it is not classified under heading 4202, HTSUSA.

Heading 6307, HTSUSA, provides for other made up articles of textile materials. This heading is a "basket provision" for goods that cannot be classified more specifically in the nomenclature. As no other provision more specifically describes the submitted merchandise, the Eeyore clip-on pouch is classified as other made up articles in subheading 6307.90.9989, HTSUSA. Moreover, the article will primarily be used as a decorative or ornamental item. This is consistent with Customs ruling in HQ 964737, discussed above, in which Customs found the “Hello Kitty” stuffed plush heads were ornamental items and classified them under subheading 6307.90.9989. See also, HQ 964324, dated July 12, 2000 (finding that a "Hello Kitty" wrist wrap was an ornamental item and was classified under heading 6307, HTSUSA); NY F87613, dated June 22, 2000 (ruling that a Pokemon clip-on is not a key chain or a toy, but is a decorative article of plastic.

HOLDING:

NY H82079 is revoked. The Eeyore clip-on pouch is classified under subheading 6307.90.9989, HTUSA, which provides for: “Other made up clothing articles, including dress patterns: Other: Other: Other, Other: Other.” The general column one rate of duty is 7 percent ad valorem.

Sincerely,

John Durant, Director

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