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1300 Pennsylvania Avenue N.W. Washington, D.C. 20229

HQ 966434


July 1, 2003

CLA-2 RR:CR:TE 966434 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Ned H. Marshak, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Seventy-Five Broad Street
New York, New York 10004

RE: Classification of a Novelty Carrying Bag; Plush Animal; HTS 4202.92.3031

Dear Mr. Marshak:

This is in regard to your letter dated April 1, 2003 and supplemental letter filed April 8, 2003, on behalf of your client, G.M.A. Accessories Inc., requesting a classification ruling for an item described as a "Plush Animal with Zipper Pocket” imported from China. A sample was submitted to this office for examination. The sample will be returned as requested.

FACTS:

The sample submitted is identified as Style PK 40022, “Plush Animal with Zipper Pocket.” The sample is a novelty carrying bag made up as a plush dog stuffed with loose polyester fiberfill. The exterior surface is composed wholly of man-made fiber textile materials. It measures 18” x 8” x 6”. The sample has an adjustable and removable shoulder strap of woven textile materials. The weight of the sample is approximately 15 ounces and the weight of the fiberfill is approximately 7.5 ounces. The mouth is made up of a 10” zipper closure and provides access to an interior storage compartment which measures approximately 13” deep with a 5” diameter. The sample is intended for use by a child
approximately 4 years of age or older. The sample is designed to provide storage, protection, organization and portability for clothing and other personal effects. Suggested articles include pajamas, books, or other personal effects.

ISSUE:

Is the sample at issue properly classified as a container of heading 4202 or as a toy of heading 9503?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 (EN), constitute the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

The classification of similar novelty bags has been the subject of numerous rulings by Customs, now the Bureau of Customs and Border Protection (CBP). In each of the rulings it was determined that a crucial factor for classification purposes is the function of the article in question, namely does the sample function primarily as a container for personal effects or as a toy. See Headquarters Ruling Letter (HQ) 950752 (dated January 9, 1992), HQ 081729 (dated December 18, 1990), HQ 952221 (dated October 27, 1992), and HQ 958308 (dated November 7, 1995). We note that you have presented several contentions and cited numerous rulings said to support the claim that the “Plush Animal with Zipper Pocket” should be classified as a toy in subheading 9503.41.00, HTSUSA, both in your written submissions and in a June 30, 2003 meeting with members of my staff. In particular you have cited to three prior rulings as being substantially similar to the sample at issue herein, namely NY B85711, dated June 12, 1997, HQ 962670, dated April 20, 1999 and HQ 961502, dated April 19, 1999. We note that each of the items at issue in those rulings had a small zippered compartment incapable of carrying anything larger than a snack size piece of candy. Accordingly, we do not find these prior rulings persuasive as they relate to the functional characteristics of the sample at issue.

You also state that the fact the carry strap is detachable is clear evidence that the sample should be classified as a toy of Heading 9503, HTSUSA. In HQ 950752, dated January 9, 1992, we determined that the article’s detachable shoulder straps did not detract from its carrying ability, since conventional backpacks also have straps which may be adjusted or removed. You assert that the unique feature of the item’s stuffing fully encapsulating the carrying compartment distinguish it from prior rulings on novelty bags. In HQ 958308, dated November 17, 1995 and HQ 950752, supra, novelty backpacks with padded compartments were classified in subheading 4202.92.3020, HTSUSA. The presence of stuffing around the compartment does not detract from the ability to function as a container of Heading 4202, HTSUSA.

The novel design of the bag adds to its appeal, however the presence of a functional storage compartment, removable shoulder strap and zipper closure indicate that the utilitarian function of the item provides the essential character of the merchandise.

HOLDING:

The “Plush Animal with Zipper Pocket” identified by item number PK 40022 is classified in subheading 4202.92.3031, HTSUSA, the provision for “traveling bags and similar containers: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other: Other: Of man-made fibers: Other.” The General Column 1 Rate of Duty is 17.8 percent, ad valorem and the textile category is 670.

There are no applicable quota/visa requirements for members of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bi-lateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available we suggest your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, available on the CBP website at www. cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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