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HQ 967491




June 16, 2005

CLA-2 RR:CR:TE 967491 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

Port Director
U.S. Customs and Border Protection
Los Angeles/Long Beach
301 E. Ocean Blvd.
Long Beach, California 90802

RE: Decision on Application for Further Review of Protest No. 2704-04-100146, concerning classification of the backpack component of a toy set.

Dear Port Director:

This is a decision on an application for further review (AFR) of a protest timely filed on January 15, 2004, against your decision in the classification and liquidation of backpacks included in an entry also containing toys and toys put up in sets entered in 2002.

FACTS:

You classified the protested clear plastic backpack in subheading 4202.92.4500, HTSUSA, the provision for “Trunksbackpacksand similar containers: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other,” with a general column one duty rate of 20 percent ad valorem. The protestant, through counsel, claims that the backpack should be classified in subheading 9503.70.0000, HTSUSA, the provision for “Other toys: Other toys, put up in sets or outfits, parts and accessories thereof,” with a general column one duty rate of free. In the alternative, protestant claims the bag should be classified pursuant to General Rule of Interpretation (GRI) 5(a), as a container “specially shaped or fitted to contain the specific articles (the dolls).”

The protested entry was liquidated on October 17, 2003. The protest and AFR were filed on January 15, 2004, the 90th day after liquidation. In compliance with Section V (“Justification for Further Review Under the Criteria in 19 CFR 174.24 and

174.25”) of the Customs and Border Protection (CBP) Form 19 (the Protest), counsel for the protestant attached a sheet which included: 1) allegations that your decision was inconsistent with a ruling concerning substantially similar merchandise (i.e., the goods subject to Headquarters Ruling Letter (HQ) 959550, dated March 16, 1998); and 2) a statement of legal arguments the protestant relied upon to justify further review.

On June 1, 2004, a “Memorandum in Support” of the protest and AFR was also submitted by counsel to CBP. Pursuant to 19 CFR section 174.28, “a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writing at any time prior to disposition of the protest.” Review of the contents of the memorandum reveals what appear to be a restatement and some expansion of the allegations and legal arguments included with the CBP Form 19 filed on January 15, 2004.

A sample of the backpack at issue and any contents, in the condition as imported, has not been submitted. On the sheet attached to the CBP Form 19, the protested merchandise is described as “Clear plastic containers for the Fashion Polly ‘Best Friends Fashion Pack Backpack,’ Product No. 52616-9998, lined with an environmental scene.” On the Form 19 attachment, protestant, through counsel, states that a complete “Best Friends Fashion Pack Backpack” consists of:

Polly Pocket plastic human figures (dolls), and fashions therefor, packaged in the clear plastic container, which is lined with an environmental scene. All the enumerated components are parts of toy sets.

Components are not specifically enumerated on the CBP Form 19 nor its attachment. The commercial invoice prepared by the foreign shipper, dated November 21, 2002, describes product no. “52616-9998*JETA [as a] KB Polly Backpack.” The invoice divides the product into two groups, and provides classification (i.e., 4202.92.4500 and 9503.70.0000) and value for each. The Entry Summary (CBP Form 7501) which references the invoice also indicates the entry of goods classified in those two provisions without specifically describing the merchandise or how it is entered. The “Description of Merchandise” on CBP Form 6445A (Customs Protest and Summons Information Report) indicates the “52616-9998* JETA KB POLLY BACKPACK” consists of 1) “Backpack;” and 2) “Dolls, Doll Clothing, Doll Accessories & Toy Animal.”

Photocopied images of clear plastic backpacks and contents were submitted to CBP subsequent to the filing of the protest. The images reveal: 1) a distant view of a child wearing a backpack product whose front view (i.e., the portion that would not be worn next to the child’s back) indicates it is a “Fashion Polly! Stylin’ Friends Fashion Pack.” The product appears to contain at least one doll and numerous doll/toy accessories; 2) a close-up, front view of a “Fashion Polly! Sleepover Party Fashion

Pack [with] 30 Accessories including 2 Sleeping bags!”; and 3) a close-up, rear view (i.e., the portion that would be worn next to the child’s back) of the “Sleepover Party” backpack, bearing the number 52616, featuring pick-up loop and shoulder straps of woven textile material (fastened together with a tag that reads “Take it on the go!”), stitched-on piping, a zipper closure along three sides, and contents stated to be “2 dolls, 2 sleeping bags, 28 fashions and accessories.”

In the “Sleepover Party” backpack’s front view, two dolls in toy sleeping bags, two teddy bears, and numerous toy fashions and accessories are visible, all neatly arranged in what appears to be a sealed, disposable, clear plastic packing tray. A fourth image of the “Sleepover Party” backpack unzipped, without the sealed packing tray or its contents, reveals what appears to be a removable paperboard insert depicting a bedroom scene that is likely intended for use as a play area for the dolls. There is no indication as to whether the “Stylin’ Friends” backpack contains a similar removable paperboard scene, nor is it clear the extent to which the “environmental scene” with which the protested “Best Friends” backpack is said to be “lined” might resemble the “Sleepover Party” backpack’s removable paperboard scene.

ISSUES:

1) Whether the “Memorandum of Law” submitted several months after the date on which the protest was filed constitutes “alternative claims and additional grounds or arguments” that may be considered, pursuant to 19 CFR 174.28, prior to disposition of the protest.

2) Whether the protested clear plastic backpack for the “Fashion Polly ‘Best Friends Fashion Pack Backpack’” is classified in a provision for dolls or toys under headings 9502 or 9503, HTSUSA; or under heading 4202, HTSUSA, as a travel bag.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the GRIs. 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

With regard to the filing and contents of a protest and AFR, and the criteria required for further review, we initially look to Title 19, Code of Federal Regulations (CFR) Part 174. Concerning “Filing of protests,” 19 CFR section 174.12 states, in part:

(e) Time of filing. Protests shall be filed...within 90 days after either: (1) The date of notice of liquidation or reliquidation....

(f) Date of filing. The date on which a protest is received by the Customs officer with whom it is required to be filed shall be deemed the date on which it is filed.

The date the subject protest and AFR were received by the Customs officer was January 15, 2004, the 90th day after notice of liquidation. With respect to contents of a protest, 19 CFR section 174.13(a)(6) states that a protest shall contain information as to:

The nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal.

19 CFR section 174.23 (“Further review of protests”) states, in part:

A protesting party may seek further review of a protestwithin the time allowed and in the manner prescribed by §174.12 for the filing of a protest.

Filing of the AFR, therefore, is subject to the same time constraints as the filing of the protest.

19 CFR section 174.24 (“Criteria for further review”) states, in part:

Further review of a protestshall be accordedwhen the decision against which the protest was filed:

(a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee

(c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.

19 CFR section 174.25 (“Application for further review”) states, in part:

(b) Contents. An application for further review shall contain the following information:

(3) A statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in § 174.24 which justifies further review.

The collective information from several sources indicates that the requirements of 19 CFR §174.13(a)(6) have been satisfied. This office will therefore consider whether the protested decision is inconsistent with HQ 959550. With regard to the “Memorandum in Support” of the protest/AFR submitted June 1, 2004, and the materials cited therein, we note that, pursuant to 19 CFR section 174.28, “a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writingat any time prior to disposition of the protest.” As previously indicated, the contents of the memorandum appear to merely restate and expand the allegations and arguments presented with the protest filed on January 15, 2004. Though under no requirement to do so, this office will consider this protestant’s alternative claims and additional grounds or arguments presented in its memorandum.

Among other goods, chapter 95, HTSUSA, covers toys, games, sports equipment and parts and accessories thereof. Heading 9502 covers dolls and parts and accessories thereof. Heading 9503 covers, in part, other toys (including those put up in sets or outfits) and parts and accessories thereof. Note 1(d) to chapter 95 states that the chapter does not cover ”[s]ports bags or other containers of heading 4202, 4303 or 4304.”

Among other items, heading 4202 provides for “traveling bagsknapsacks and backpacks...and similar containersof sheeting of plastics.” The exemplars named in heading 4202 have in common the purpose of organizing, storing, protecting, and carrying various items. In pertinent part, legal note 1(l) to chapter 42, HTSUSA, states that the chapter does not cover “[a]rticles of chapter 95 (for example, toys, games, sports equipment).”

There are several Explanatory Notes which offer guidance in understanding the scope of headings 9502 and 9503, and clarify the design and intended uses of merchandise classifiable under chapter 95. The General EN to chapter 95, HTSUSA, state, in part, that the “[c]hapter covers toys of all kinds whether designed for the
amusement of children or adults....” The EN to heading 9502 state, in part, that “[t]he heading includes not only dolls designed for the amusement of children, but also dolls intended for decorative purposes....” The EN to heading 9503 state, in pertinent part, that “[t]his heading covers toys intended essentially for the amusement of persons (children or adults)....Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets)....” The subheading EN to subheading 9503.70, HTSUSA, states, in pertinent part, that “’[s]ets’ are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included.”

There is no evidence of record that the clear plastic backpack at issue is designed or intended for the amusement of children or adults, that it is put up in a form clearly indicating its use as a toy, or that it is a component of a set of articles (principally for amusement) that is put up in the same packing for retail sale without repacking. Available evidence indicates that the subject backpack is a substantially constructed container that is designed and intended to store, protect, carry, and (at least initially) organize various personal articles, including the contents with which it will be sold. Whether the actual contents are imported with the backpack in the same packing for retail sale is not known.

In the first of three rulings cited by counsel for the protestant, i.e., HQ 959550, dated March 16, 1998, this office decided an AFR, and instructed the port to allow a protest concerning a “Barbie 100 Piece Gift Set.” The set’s components had been separately classified in headings 9503, 9502, and 4202, HTSUSA. All components, including a carry bag, were reclassified in subheading 9503.70.00, HTSUSA. The “Gift Set” was described as consisting of:
what appears to be approximately 100 accessories for a “Barbie” doll, such as, doll clothing and miscellaneous plastic itemsshoes, a comb, a brush, a cat, etc., intended for use in playing with a “Barbie” doll. These articles are accompanied by a durable pink plastic carry bag that measures approximately 13 inches by 11 inches by one inch. The carry bag features two handle holes of reinforced plastic, the name “Barbie,” and a colorful depiction of “Barbie” carrying several shopping bags. The “Barbie 100 Piece Gift Set” is imported packaged for retail sale and is marketed to girls ages five and up. A sample was submitted for our review.

We find the facts of the instant case to be materially distinct from those of HQ 959550. In this case, no sample has been submitted for our review. The bag at issue in HQ 959550 featured the name “Barbie” and a colorful depiction of Barbie carrying
several shopping bags. That ruling clearly stated that the numerous toys, and doll and toy accessories were accompanied by the carry bag, and that all components were imported together packaged for retail sale. It was noted that the ability to individually use one or more components of a set classifiable in subheading 9503.70 did not disqualify the whole from being classified as a toy set, and that it was sufficient that the components possess a clear nexus contemplating a use together to amuse. Although no specific use or activity theme was stated, the retail package showed the various scale-size components of the set arranged on what appeared to be retail store shelves. There also were other indications of a make believe sale environment. The suggested play activity involved Barbie going shopping, alone or with friends, buying doll clothing and accessories (for herself or her friends), placing the items in the bag, and carrying them around until unpacking them. Unlike the backpack at issue herein, the bag in HQ 959550 served as a logical adjunct to the other items, as a shopping bag to emulate Barbie carrying her purchases home from the store (an activity pictured on the bag) and as a storage bag for the clothing and accessories of the set when not in use.

In the “Memorandum in Support,” dated June 1, 2004, counsel for the protestant essentially asserts that two additional CBP rulings (and a “Stipulated Judgment on Agreed Statement of Facts” discussed further below) concern articles said to be similar to the “Best Friends Fashion Pack Backpack” and require classification of the protested goods in subheading 9503.70. In NY D86822, a vinyl backpack was found to be a component of the “8 pc. Backpack Bug Collectors” toy set that was classified in subheading 9503.70. It was found that the set was designed to educate and promote exploration of the environment. The play activity required transport and storage of the items necessary for the capture, viewing, manipulation, and storage of bugs, occasionally hands-free, while traveling through an outdoor environment. The bug collector’s backpack was found to contribute to the complete article’s play value, e.g., by storing and transporting a shovel, binoculars, fork, butterfly keeper, tweezers, etc., and by allowing a child to move through the outdoors with net at the ready for capture of the next subject of study. In that case, it was clear that all components were imported together as a set for retail sale. Unlike the bug collector’s backpack, the subject backpack does not appear to add to the play value and, if the environmental scene remains inside, the backpack would appear to hinder play activity.

In the second of the two additional rulings, i.e., HQ 960465, components consisting of a plush toy dog (i.e., “Snoopy”), packaged together with a doghouse-shaped handbag decorated to represent Snoopy’s doghouse, were classified in subheading 9503.70. Drawings featuring the dog, his name, his dog dish, and his friend “Woodstock” appeared on the handbag. The “roof” of the “doghouse” handbag could be lifted open from one side for placement or removal of the toy dog. The opening could be secured by a hook and loop fastener and the “roof” also had a vinyl strap for carrying. The “Snoopy” theme of the two components and the handbag’s
doghouse shape indicated the articles’ principal use as toys. The play activity involved Snoopy being carried around and removed from and placed in his “doghouse.” Both components were found to have a significant amount of play value. They were each capable of occupying one in a pleasant or enjoyable (amusing) way, allowing use of the imagination and creativity in different play scenarios. In contrast, the subject backpack itself has no special shape or incorporated features that would contribute to a child’s amusement, to the use of his/her imagination, or to creative play activity.

Although not cited by counsel, we note that NY E89166, dated November 22, 1999, was issued to counsel on behalf of the current protestant. In that ruling, CBP classified a “Fashion Polly ‘School Cool Fashion Pack’” (item number 25598) in subheading 9503.70.0000, HTSUSA. The item was identified as a pre-production sample that consisted of a Polly Pocket doll, doll clothing, doll accessories, and a vinyl “case.” The case measured 8-1/2 inches in width by 9-1/2 inches in height by 3 inches in depth. It had a zippered closure extending around three sides and adjustable textile straps allowing the case to be carried on the back. The case was said to be unique in construction in that a play environment was to be incorporated inside. Counsel informed CBP that the case would be constructed with a permanently affixed cardboard liner glued around three interior walls. The cardboard liner was to be printed to resemble a school locker room scene, including the portrayal of a brick wall, lockers, window, water fountain, posters and tile floor. The liner also had a fold down flap that extended the floor area approximately 2 inches for added play. The illustrated interior was designed to serve as a play environment for the doll and her accessories, similar to a dollhouse. All components were to be imported together, visibly displayed on a clear plastic packing tray and placed within the vinyl case ready for retail sale without repacking. Counsel was advised that if the actual finished product did not conform to the descriptions that had been provided to CBP, the ruling would become invalid. Material distinctions between the merchandise and facts of NY E89166 and those of the subject protest/AFR include the permanent attachment of the play environment (to the interior walls) which imparted play value to the container itself (similar to a dollhouse) and the liner’s fold down flap extending the floor area for added play.

For the reasons stated above, we find that the three cited rulings, i.e., HQ 959550, NY D86822, and HQ 960465, do not support counsel’s contention that the subject backpack must be classified in subheading 9503.70, HTSUSA. We note that several CBP rulings warrant a different result, rulings in which containers playing roles similar to the backpack in relation to the toys/dolls they carry, are classified under heading 4202, separately from the toy/doll components with which they were imported. Reasons for separate classification of the containers in the rulings noted below included one or more of the following: the container did not constitute a toy in its own right; the container did not contribute to play activity; the container was able to carry various other personal effects; the container was not specially shaped or fitted; and/or
the container did not constitute normal packaging for the toys. See New York Ruling Letters (NY) L80498, dated October 29, 2004 (child’s backpack and toy cookware set); NY K87728, dated July 30, 2004 (boy’s and girl’s backpacks containing toys specific to each gender); NY G80496, dated August 2000 (backpack with toy set including toy dogs and pretend dog care-related toys); NY A81586, dated March 28, 1996 (textile bag containing toy pigs and toy vegetables); and NY A80867, dated March 11, 1996 (travel bag containing plush, stuffed toy bear).

In the “Memorandum in Support,” counsel asserts, in the alternative, the applicability of GRI 5(a) to the protested “Best Friends Fashion Pack Backpack.” It is claimed that a “Stipulated Judgment on Agreed Statement of Facts,” dated April 14, 1999, concerning the bag components for four styles of “Slumber Party Barbie” dolls, require classification of the protested backpack in subheading 9503.70. Those bags were subject to protests and summons filed under Mattel, Inc. v. United States (Court No. 96-02-00524). The products were described in the stipulation as “each consisting of a Barbie doll packaged in a clear, soft-sided, square, plastic bag with pink tape borders, specifically designed to contain and display and for play with the doll.” It was also noted that “the clear plastic bags in which each doll is contained, packaged, imported, and sold” had been reclassified from subheading 4202.92.4500, HTSUSA, to subheading 9502.10, HTSUSA, pursuant to GRI 5(a). Details regarding a basis for the government’s agreement to stipulate, or further description as to the stipulated bags’ play value, features, shape, fittings, etc. are not available.

With regard to the effect of a court-approved stipulation on the classification of merchandise that is not subject to that order, we note that the Court of International Trade (CIT) has indicated that a case submitted on an agreed stipulation of facts, without trial or briefing by the Court, lacks precedential value. See Siemens America, Inc. and Siemens Corp. v. United States, 2 CIT 136, 140 (1981), aff’d, 692 F.2d 1382 (Fed. Cir. 1982). The case involved three prior judgments predicated on an agreed statement of facts which had no stare decisis effect on subsequent liquidations. The basis for concluding that an agreement to stipulate should have no effect as precedent is that the agreement may have been based on a variety of factors unique to the particular facts of that case. The U.S. Supreme Court has also made it clear that, as collateral estoppel does not apply in classification cases, the government is free to relitigate the classification of merchandise at issue in an action covering other entries. United States v. Stone & Downer Co., 274 U.S. 225 (1927). See also Schott Optical Glass, Inc. v. United States, 748 F.2d 677 (Fed. Cir. 1984); Heraeus-Amersil, Inc. v. United States, 13 CIT 764, 766 (1989); and Ashdown, U.S.A., Inc. v. United States, 12 CIT 808, 810 n.1, 696 F. Supp. 661 (1988). In an action before the CIT, if the court determines that merchandise of a particular kind that is before it should be classified in a certain manner, nothing precludes similar merchandise in future importations from
being treated differently by CBP. There is, therefore, no obligation to classify the subject backpack in the same subheading as the clear plastic bags imported with the “Slumber Party Barbie” dolls.

Concerning GRI 5(a) as applied to the “Best Friends Fashion Pack Backpack” and protestant’s alternative claim, GRI 5(a) states, in part, that:

[c]amera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

There is no evidence in the submitted photo representations of the backpack components of “Sleepover Party” and “Stylin’ Friends,” nor in the descriptions of the non-pictured “Best Friends” backpack, that those containers bear any similarity to the specially shaped or fitted containers enumerated immediately above. There is no evidence that the “Sleepover Party” or “Stylin’ Friends” backpacks are specially shaped or fitted (other than with a disposable tray for pre-purchase display) to contain a specific set of articles. Although the protested “Best Friends” backpack at issue is suitable for long-term use as GRI 5(a) requires, there is no evidence that the container is specially shaped or fitted to contain a specific article or set of articles, nor that clear plastic backpacks are of a kind normally sold with dolls, doll accessories, etc. Therefore, GRI 5(a) does not operate to render the “Best Friends” backpack classifiable under headings 9502 or 9503, HTSUSA.

The backpack is able to store, protect and carry dolls, toys, accessories, and perhaps additional personal items such as clothing for use at a sleepover, etc. Unlike the carry bag, backpack, and handbag of HQ 959550, NY D86822, and HQ 960465, respectively, whose features and contents suggest and enhance a variety of play activities, there is no evidence that play activity is associated with the subject backpack itself. The environmental scene imported with the backpack may suggest play within a doll’s bedroom, but involving such a scene in play activity would appear to be difficult without first removing the scene from the backpack’s interior. The environmental scene may be sized to fit the backpack’s confines, but there is no evidence the scene is permanently affixed to the interior, or that the container is specially shaped or fitted for that particular scene or any other contents. We find that the backpack is not designed or intended for the amusement of children or adults. In light of the above analysis, we find that the “Best Friends” backpack is classified in heading 4202, HTSUSA. As such, the container is excluded from classification in chapter 95 by note 1(d) to the chapter.

HOLDING:

The clear plastic container for the Fashion Polly “Best Friends Fashion Pack Backpack,” identified by product no. 52616-9998, is classified in subheading 4202.92.4500, HTSUSA, the provision for “Trunks...traveling bagsknapsacks and backpacks...and similar containers...: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” The applicable general column one duty rate is 20 percent ad valorem.

The protest should be DENIED. In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 22), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,


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