CLA-2 RR:TC:TE 958174 GGD
Mr. Michael O'Neill
O'Neill & Whitaker, Inc
1809 Baltimore Avenue
Kansas City, Missouri 64108
RE: Reconsideration of New York Ruling Letter (NYRL) 807588;
"PEANUTS Candy Pouch;" Heart-Shaped PVC Shoulder Bag; Not
Other Toy; Not Article for Conveyance or Packing of Goods
Dear Mr. O'Neill:
This letter is in response to your request of July 7, 1995, on behalf of your client, Russell Stover Candies (Whitman's Division), for reconsideration of NYRL 807588, issued March 14, 1995, pertaining to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a heart-shaped container imported from China. A sample was submitted with your request.
FACTS:
In NYRL 807588, the article was classified in subheading 4202.22.1500, HTSUSA, the provision for "Handbags, whether or not with shoulder strap, including those without handle: With outer surface of sheeting of plastic or of textile materials: With outer surface of sheeting of plastic," with an applicable duty rate (in 1995) of 19.6 (now 19.2) percent ad valorem. The pouches are imported empty and will be filled with U.S.-made candy for retail sale as Valentine gift packages. -2-
The sample, identified by code no. 7220, is a heart-shaped carrying bag that measures approximately 7 inches in length by 5-1/4 inches in height by 2 inches in depth. The back and front panels are composed of unbacked polyvinyl chloride (PVC) sheeting. The back panel is clear plastic and the front panel is decorated with Valentines and the "Peanuts" cartoon characters Snoopy and Woodstock. The side gusset consists of fabric-backed PVC. The bag is zippered across the top and has a shoulder strap that measures approximately 34 inches in length. After importation, a heart-shaped, paperboard box containing 3-3/4 ounces of candy will be inserted into the pouch for retail sale.
ISSUE:
Whether the "PEANUTS Candy Pouch" is classified as an other toy in heading 9503, HTSUS; as an article for the conveyance or packing of goods in heading 3923, HTSUS; or as a handbag or similar container in heading 4202, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.
Chapter 95, HTSUS, covers "toys, games and sports equipment; parts and accessories thereof." Note 1(d) to chapter 95 states that "[t]his chapter does not cover: Sports bags or other containers of heading 4202...." Heading 9503, HTSUS, provides for "Other toys...and accessories thereof," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 indicate that a toy is an article designed for the amusement of children or adults. It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. The EN to heading 9503 indicate that certain toys (e.g., electric irons, sewing -3-
machines, musical instruments, etc.) may be capable of a limited "use," but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.
Although the candy pouch is decorated with hearts and amusing cartoon characters, not all merchandise that amuses is properly classified in a toy provision. The article is not limited in its use as a functional container and its decoration provides a clearer invitation for children to wear the bag (to carry candy, small toys, etc.) than to play with it. We thus find that the candy pouch is not principally designed for amusement and is not classifiable in heading 9503, HTSUS.
Heading 3923, HTSUS, provides for articles for the conveyance or packing of goods, of plastics. The EN to heading 3923 indicate that:
[t]his heading covers all kinds of plastics commonly used for the packing or conveyance of all kinds of products. The articles covered include:
(a) Containers such as boxes, cases, crates, sacks and bags (including cones and refuse sacks), casks, cans, carboys, bottles and flasks.
The heading also covers cups without handles having the character of containers used for the packing or conveyance of certain foodstuffs, whether or not they have a secondary use as tableware or toilet articles.
(b) Spools, cops, bobbins and similar supports.
(c) Stoppers, lids, caps and other closures.
In Headquarters Ruling Letter (HRL) 954072, issued September 2, 1993, this office observed that the exemplars cited in the EN to heading 3923 make it "clear that this heading provides for cases and containers of bulk goods and commercial goods and not personal items." We find that, since the "PEANUTS Candy Pouch" is not designed to carry, nor does it carry, bulk or commercial goods, it is not classifiable in heading 3923, HTSUS.
Heading 4202, HTSUS, provides, in part, for "...handbags... purses...and similar containers...of sheeting of plastics...or wholly or mainly covered with such materials...." The EN to -4-
heading 4202 indicate that the containers covered by the heading may be rigid or with a rigid foundation, or soft and without foundation. Since the candy pouch is functional and similar to a handbag or purse, it is covered by the heading. It is classified in subheading 4202.22.1500, HTSUSA.
HOLDING:
The "PEANUTS Candy Pouch," identified by code no. 7220, is properly classified in subheading 4202.22.1500, HTSUSA, the provision for "Handbags, whether or not with shoulder strap, including those without handle: With outer surface of sheeting of plastic or of textile materials: With outer surface of sheeting of plastic." The applicable rate of duty (in 1995) is 19.6 percent ad valorem.
NYRL 807588, issued March 14, 1995, is hereby affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division