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HQ 965729




September 9, 2002

CLA-2 RR:CR:TR:TE 965729 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Ms. Jeanette Hughes
KTB Originals, Inc.
1120 Swan Lake Drive
North Myrtle Beach, SC 29582

RE: Reconsideration of NY H83574; Classification of Novelty Carry Bags, identified as “Rudy the Reindeer” and “Fur Angel”, made in Hong Kong, Taiwan and/or China

Dear Ms. Hughes:

This is in response to your request, dated October 10, 2001, for a review of the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) effected by Customs in New York Ruling Letter (NY) H83574 (August 2, 2001), of two novelty carry bags.

FACTS:

Descriptions of the articles under consideration are provided in NY H83574 and will not be repeated here; that ruling is hereby incorporated by reference into this decision, and a copy is attached. (We note, however, that the “Rudy the Reindeer” sample submitted to this office is slightly different than that ruled on in NY H83574 in that the bottom is now stuffed and the nose does not light). You state in your submissions that “[O]ther similar forms may subsequently be developed such as an Easter bunny.” In NY H83574 Customs classified the two subject articles in subheading 4202.92.3031, HTSUSA, which provides for travel, sports and similar bags, with outer surface of textile materials, other, of man-made fibers, other, with a (2001) duty rate of 18.3 percent.

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You dispute the classification provided in NY H83574 and, apparently, also that part of the description in which the articles are referred to as “novelty carry bags.” You state:

We contest the tariff classification since we believe the determination by the import specialist that the primary function of the items is as a traveling bag was not correct. While it is true that the items can be used for storage of things inside the pocket, the primary function intended is a decorative stocking that would be hung by the provided strap to a fireplace mantle or the doorknob of a child’s room to hold presents given for the holiday – the Reindeer and Angel for Christmas and the Bunny for Easter. Subsequent use for the child after the holiday would be as a stuffed toy. Our promotional and sales literature supports these intended uses.

Although your submissions do not claim alternate classification in any specific subheading of the tariff, you state that you request “a reclassification as a toy or decoration”; toys and “holiday decorative items” are both classifiable in Chapter 95, HTSUSA. Copies of promotional and sales literature are included with your submissions.

ISSUE:

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States, Annotated, of the articles identified as “Fur Angel” and “Rudy the Reindeer?”

LAW AND ANALYSIS:

We affirm the holding of NY H83574 and we cite and adopt the analysis provided therein. As discussed, above, NY H83574 is attached and is incorporated by reference into this ruling. In way of further clarification we note that, for various reasons, these items are not classifiable as toys or dolls in Chapter 95, HTSUSA. Neither the “Fur Angel” nor “Rudy the Reindeer” is a doll as neither is a full figure representation of a human. Neither item is designed to amuse and therefore neither is a toy; the items have no manipulative play value and seemingly little use as toys. Both items, however, have obvious functional uses of storage, carrying, etc. See, HQ 963221, October 11, 2001 and HQ 952221, October 27, 1992.

The items are likewise not classifiable in Chapter 95 as festive articles. The question of whether a festive theme will render an article classifiable in Chapter 95 (as opposed to classification of the item based solely on its utilitarian function) is

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currently being considered on appeal in the case of Park B. Smith, Ltd. v. United States, Court No. 96-02-00344, Slip Op. 01-63 (May 29, 2001). However, based on Customs current position, these articles do not meet the requirements for classification in Chapter 95. Although the “Christmas Angel” has been recognized as a symbol of Christmas, there is nothing particular about the subject “Fur Angel” to indicate that it is a Christmas Angel. While the “Rudy the Reindeer” has a passing resemblance to a Christmas stocking because of its shape, the shoulder strap indicates that the product’s intended use is as a carry bag, a purpose more functional than as a decorative stocking. See, HQ 087792, December 18, 1990.

HOLDING

The legal reasoning and analysis of NY H83574, August 2, 2001, is adopted and incorporated by reference into this ruling. NY H83574 is hereby affirmed.

The items identified as “Fur Angel” and “Rudy the Reindeer” are classified in subheading 4202.92.3031, HTSUSA, which provides for “Travel, sports and similar bags: With outer surface of textile materials: Other, Other: Of man-made fibers: Other.” The general column one duty rate is 18.1 percent (a slight reduction from the duty rate in effect at the time of issuance of NY H83574). The textile category designation is 670. Based upon international textile trade agreements, products of Hong Kong, Taiwan and China are subject to quota and the requirement of a visa.

The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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