CLA-2 CO:R:C:T 952216 ch
Timothy Bumb
Fact Games, Limited
1590 Berryessa Road
San Jose, CA 95133
RE: Modification of NYRL 874611; Classification of "Flip Top"
Halloween containers in heading 4202.92.3030 travel or traveling
bag; handbag; tote bag; not festive articles of heading 9505; not
other made up articles of heading 6307.
Dear Mr. Bumb:
This is in response to your letter of July 2, 1992,
requesting reconsideration of NYRL 874611. In that ruling,
Customs classified certain halloween trick-or-treat containers as
handbags under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).
FACTS:
The samples submitted relate to items described as "Flip
Tops," which are manufactured in Thailand. "Flip Tops" are
caricatures which represent the heads of various halloween
figures such as Jack-O-Lanterns, Monsters, Elves and Snowmen.
The heads are hollow and have removable tops, which are secured
by means of hook and loop closures. "Flip Tops" are constructed
of synthetic fabric, with small amounts of synthetic cut plush
pile used for hair. They also feature textile handles for
carrying or hanging which are secured at the sides.
You indicate that "Flip Tops" will be used primarily as
containers for candy and gifts given to children, and as table-
top decorations. They are to be displayed at grocery and variety
retailers near Halloween candy and costume displays. Descriptive
literature refers to the items as "carry-alls" in various
contexts.
ISSUE:
What is the applicable tariff classification for the
articles in question?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
You contend that "Flip Tops" are properly classified under
Subheading 9505.90.6090, HTSUSA, festive, carnival or other
entertainment articles, other, other.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System constitute the official
interpretation of the tariff at the international level. While
not legally binding, they do represent the considered views of
classification experts of the Harmonized System Committee. It
has therefore been the practice of the Customs Service to follow,
whenever possible, the terms of the EN when interpreting the
HTSUSA.
The EN to Heading 9505 provide, in pertinent part:
This heading covers:
(A) Festive, carnival or other entertainment
articles, which in view of their intended use
are generally made of non-durable material.
They include:
(1) Decorations such as festoons, garlands,
Chinese lanterns, etc., as well as various
decorative articles made of paper, metal
foil, glass fibre, etc., for Christmas trees
(e.g., tinsel, stars, icicles), artificial
snow, colored balls, bells, lanterns, etc.
Cake and other decorations (e.g., animals,
flags) which are traditionally associated
with a particular festival are also
classified here.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers,
Christmas stockings, imitation yule logs.
In the past, Customs has interpreted this language to mean that
articles classifiable in heading 9505 tend to have no function
other than decoration. See HRL 087715, HRL 087365, HRL 087105,
HRL 087147, HRL 082060. More recently, we have stated that a
festive article must function primarily as a decoration (i.e.,
its primary function is not utilitarian). See HRL 952249, HRL
089147.
In this case, you advise us that the articles in question
may be used as containers for candy and gifts. This conclusion
is supported by the fact that the articles possess a cavity for
holding candy and other items. Moreover, the articles feature
carrying handles and removable tops which suggest that they will
be used to transport their contents from place to place. This
inference is supported by the fact that the descriptive
literature accompanying the goods refer to them as "carry alls."
Since the articles are manufactured for sale during the halloween
season, we conclude that these articles are used to transport
candy and other items children receive from trick or treating.
We also find that this utilitarian purpose is at least as
important as its decorative function. It follows that the
subject merchandise cannot be classified as festive articles
under heading 9505.
In the alternative, you argue that the subject items are
properly classified under heading 6307.90, other made up
articles...other. However, the EN to heading 6307 provide:
This heading covers made up articles of any textile
material which are not included more specifically in
other headings of Section XI or elsewhere in the
Nomenclature. (Emphasis in original).
We conclude that the instant articles are more specifically
described under heading 4202.
Heading 4202 provides, inter alia, for handbags and similar
containers. In HRL 084426 we stated that:
[T]he only absolute requirement of a handbag is that it
be held in the hand or hung by an arm/shoulder strap.
This is true of the merchandise at issue. The size and
sturdiness of these bags is more than sufficient for
daily transport of personal effects.
"Flip Tops" can be held by the hand and transport personal
effects. Although we recognize that candy and other halloween
items are not the sort of personal effects which are normally
found in a women's handbag, this does not preclude the
classification of the subject merchandise in Heading 4202.
Additional U.S. Note 1 to Section XI, HTSUSA, states:
For the purposes of heading 4202, the expression
"travel, sports and similar bags" means goods, other
than those falling in subheadings 4202.11 through
4202.39, of a kind designed for carrying clothing and
other personal effects during travel, including
backpacks and shopping bags of this heading, but does
not include binocular cases, musical instrument cases,
bottle cases and similar containers.
In HRL 951113 we stated:
By specifically including shopping bags of this heading
[Heading 4202] within the broad category of goods
designed for carrying personal effects during travel,
it is clear Congress...did not intend for the "travel,
sports and similar bags" provision to encompass only
those bags sufficiently sturdy as to withstand the
rigors of travel that conventional luggage is designed
to meet.
In that ruling, we held that shopping bags were "travel bags"
within the scope of Heading 4202.
Similarly, we find that the subject articles meet the
criteria for a "travel bag," as they are designed for carrying
personal effects during travel; i.e. trick-or-treating. Their
use as storage or decorative items are secondary to this primary
function. Accordingly, "Flip Tops" are properly classifiable as
travel bags under Heading 4202.
HOLDING:
The products marketed as "Flip Tops" are properly
classifiable under subheading 4202.92.3030, HTSUSA, which
provides for traveling bags, other, with outer surface of plastic
sheeting or of textile materials, travel, sports and similar
bags, other, other, other. The applicable rate of duty is 20
percent ad valorem, and the textile quota category is 670.
This notice to you should be considered a modification of
NYRL 874611 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 874611 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type, NYRL
874611 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.
However, please be advised that in some instances involving
import restraints, such relief may require separate approvals
from other government agencies.
Sincerely,
John Durant, Director