CLA-2 CO:R:C:T 950752 JS
Tony Marks
DSM International
130 Produce Suite H
S. San Francisco, CA
RE: Hoopla Animal Packers; toy; backpack or knapsack,
classifiable heading 4202, HTSUSA
Dear Mr. Marks:
This classification is the result of a letter dated May 23,
1990, in which your client, Hoopla, requested a binding ruling
for its product, Hoopla Animal Packers. In a letter dated
November 14, 1991, you responded to our invitation to submit
additional information with respect to classification of this
article.
FACTS:
Three samples of the merchandise at issue were provided for
our inspection. They each depict a different toy animal, and
have very similar structures.
The item which resembles a "rabbit" is made of an exterior
terry cloth fabric which is composed of 65 percent polyester, 20
percent rayon and 15 percent cotton; the filling material is 100
percent polyester. The sample is made up of a soft, stuffed head
with floppy ears, and stuffed arms and legs which are also floppy
because they are sewn onto the body of the article. The body of
the article is uniformly padded and forms a compartment that is
approximately 10 x 8 x 2 1/2 inches, a shape that resembles a
brown paper bag. This compartment is lined with a cotton-like
striped fabric. The top opening has a covered elastic gathering
at its front edge, and the back of the opening extends into a 4
inch U-shaped flap. This flap has a hook and loop tab on its
underside which corresponds to a similar tab sewn onto the front
edge of the opening, near the gathering. The figure's head is
sewn onto the flap, and a fabric loop is attached to the area
behind the head. A textile carrot is appliqued onto the front of
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the item and detachable shoulder straps which form an inverted
"V" are snapped onto the back. These straps may be used to carry
the article as a backpack.
The item which resembles a hippopotamus is constructed in
virtually identical fashion, except that the fabric content tag
has been altered, presumably by the importer, to indicate a shell
content of 65 percent polyester, 35 percent rayon; the filling
material is made up of 100 percent polyester.
The item which resembles a cat is formed with similar terry
cloth fabric, although the exact fiber content is unknown. The
figure's head is attached by a snap, rather than sewn on, and the
front compartment is split down the middle, and opens like a
door. To form the compartment, a bottom flap (about 10 inches
long) is folded in first, and the two side flaps, which have hook
and loop edges, are folded over it and secured. Although this
design does not provide as sturdy and permanent a space as do the
others, it is nonetheless functionally equivalent. Detachment of
the various flaps creates an object which has no discernable use
or purpose.
ISSUE:
Whether the merchandise at issue may be classified as toys
of heading 9403, or backpacks of heading 4202, HTSUSA.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI), taken
in order. GRI requires that classification be determined
according to the terms of the headings and any relative section
or chapter notes, taken in order.
The competing provisions in this case are heading 4202,
which provides for backpacks, and heading 9503, which provides
for other toys. Heading 4202 is considered for classification
since the construction of this item allows it to be used as a
carrying case. However, in order for this heading to apply, the
goods may not be considered toys since Chapter Note 1(l) of this
heading excludes articles of Chapter 95 from consideration.
The terms of the heading 4202 provide for trunks, suitcases,
and cases of all kinds, including knapsacks and backpacks. The
Explanatory Notes (EN), the official interpretation of the tariff
at the international level, state that the heading covers only
(emphasis in text) the articles specifically named therein and
similar containers, and, that these containers may be rigid or
with a rigid foundation or soft and without foundation. Thus,
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not only are backpacks and knapsacks specifically named, but the
items at issue, although soft and without foundation, are within
the purview of heading 4202.
Heading 9503, which provides for toys, does not as fully
cover the goods at issue. We note that this chapter, also, has
an exclusion under Chapter Note 1(d) which prohibits sports bags
or other containers of heading No. 42.02 from consideration as a
toy.
You assert that the Animal Packer is primarily a stuffed toy
that has added features for convenience only, and that its
essential characteristic is the ability to amuse or entertain in
the manner of a toy. You point out that the shoulder straps are
removable, and have been included merely to make the stuffed
animal portable; that both the straps and the pocket enhance the
versatility of the article but do not create a backpack. In
addition, you point out that the article does not have the
holding capacity of a backpack nor the durability of one, due to
its construction as well as use of soft, terry cloth material
rather than nylon or some other water resistant fabric.
Although the whimsical characters are designed to appeal to
children, the presence of a functional compartment, shoulder
straps and hook and loop closures indicate an intent for use as a
carrying case, a use which characterizes the article at issue.
The compartment which forms the animal body is functionally
relevant and capable of use by a small child for the storing of
small toys or supplies. Despite the proportions of this item, it
is nonetheless recognizable as a backpack - the detachable
shoulder straps do not detract from the items' carrying ability,
since conventional backpacks also have straps which may be
adjusted or removed. Moreover, the claim that soft, non-durable
material is evidence contrary to classification under heading
4202 fails in light of EN 42.02 which allows for containers which
are soft and without foundation, as is the case. We therefore
find that heading 9503 does not adequately provide for the
present merchandise and may not be classified therein.
HOLDING:
The Animal Packers, including the cat-figured sample which
is slightly varied in its construction, all have the character of
carrying cases. As such, each of the sample styles are
classifiable under subheading 4202.92.3020, which provides for
...knapsacks and backpacks...of textile materials...other, with
outer surface of plastic sheeting or of textile materials:
travel, sports and similar bags: with outer surface of textile
materials: other: of man-made fibers: backpacks, textile
category 670, dutiable at the rate of 20 percent ad valorem.
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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 bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available we
suggest your client check, close the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service which is updated weekly and is
available for inspection at its local Customs office.
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 Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division