CLA-2 OT:RR:CTF:TCM H246724 TNA
Port Director, Service Port-Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd. Suite 1400
Long Beach, CA 90802
Attn: Don Dorsett, Import Specialist
Re: Internal Advice Request 13/032; classification of “Pack Mates”
Dear Port Director:
This is in response to your undated letter, forwarding with comments the Request for Internal Advice submitted by counsel on behalf of Kellytoy USA, Inc. (“Kellytoy” or “Requester”), on June 10, 2012, concerning the classification of “Pack Mates” under the Harmonized Tariff Schedule of the United States (“HTSUS”). Samples of the subject merchandise, which were received along with this request, were examined by this office.
FACTS:
The subject merchandise consists of 14 models of “Pack Mates,” which are stuffed articles that depict various types of animals such as unicorns, bumble bees, alligators, cows, dogs, and ducks. They are plush animals that are three dimensional and have clearly defined appendages- i.e., arms and legs with paws at the ends. They also have stuffed heads that protrude from the bodies and have clearly defined facial features such as eyes, ears, and noses.
Most models of the subject merchandise are medium sized, measuring approximately 13 inches in length by 13 inches in width or slightly larger. They have textile straps on the back of the animal that are used to hold the item in the same manner as a backpack. Furthermore, each model contains a small zipper compartment that can be used to store small items. The compartments are built into each model of the subject merchandise and open into the body of each model. These compartments measure approximately six inches deep, eight and a half inches in length and four inches wide when the zipper is open. The stuffing of the subject merchandise protrudes into the compartments, making them seem smaller.
Two models of the subject merchandise, Item Numbers HB9025 and 9154, depict dogs. They, too, are stuffed, plush, items with clearly defined legs, paws, and facial features, but they are substantially smaller than the rest of the subject merchandise. Item Number HB9025 measures approximately six inches by seven inches, and Item Number 9154 measures approximately ten inches by eight inches. The handles on their backs are made of the same plush material as the rest of the item and are substantially shorter than the straps of the rest of the subject merchandise. Item Number 9154 also has a single strap, rather than two straps. The zipper compartments of these two items are also very small, and measure approximately three and a half inches in length by three inches in depth when the zipper is open. In both these models as well, the animals’ stuffing makes the compartments smaller. The “HB” in these item numbers stands for “handbag.”
Two models of the subject merchandise, Item Numbers BP1022 and BP2422B, depict humans. They are made of the same plush material as the rest of the subject merchandise, but they are not completely stuffed. To the contrary, only their heads, arms and legs are stuffed. Their torsos are depicted by the dresses they wear, and their zipper compartments are built into the dresses. As a result, these compartments are larger than in the rest of the subject merchandise, and are unencumbered by the items’ stuffing. The compartments measure approximately six inches in width by six inches in length and four inches deep. The “BP” in these item numbers stands for “back pack.”
Requestor takes the view that these items are classified as toys of heading 9503, HTSUS, while the Port takes the view that they are backpacks of heading 4202, HTSUS.
ISSUE:
Whether “Pack Mates” are classified as backpacks of heading 4202, HTSUS, or as toys of heading 9503, HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
The HTSUS headings under consideration are the following:
4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
Note 2 to Chapter 42, HTSUS, states, in pertinent part, the following:
This chapter does not cover:…
(l) Articles of chapter 95 (for example, toys, games, sports equipment);
Additional U.S. Note 1 to Chapter 42, HTSUS, states the following:
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, camera cases, musical instrument cases, bottle cases and similar containers.
Note 1 to Chapter 95, HTSUS, states, in pertinent part, the following:
This chapter does not cover:…
(d) Sports bags or other containers of heading 4202, 4303 or 4304;…
(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 4202, HTSUS, states, in pertinent part, the following:
This heading covers only the articles specifically named therein and similar containers.
These containers may be rigid or with a rigid foundation, or soft and without foundation…
The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.). The term “leather” includes chamois (including combination chamois) leather, patent leather, patent laminated leather and metallised leather (see Note 1 to this Chapter)…
The heading does not cover:…
(h) Articles of Chapter 95 (for example, toys, games, sports requisites).
The EN to heading 9503, HTSUS, states, in pertinent part, the following:
This heading covers:
…
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults). … This group includes:
…
(i) Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows.
Legal Note 2(l) to Chapter 42, HTSUS, excludes articles of Chapter 95, HTSUS, such as toys, games or sports equipment. Similarly, Legal Note 1(d) to Chapter 95, HTSUS, excludes sports bags or other containers of heading 4202, HTSUS. Two legal notes such as these do not mutually exclude each other, but rather instruct that classification is made in the one chapter that properly includes the article under consideration. See HQ 088665, dated June 14, 1991; HQ 963221, dated October 11, 2001; HQ 963478, dated May 30, 2001; HQ 963638, dated November 2, 2001. Accordingly, we must determine which Chapter properly includes the subject merchandise.
Neither the HTSUS nor the ENs define the term “toy,” but several court cases have. In United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971), the court defined “toy” as “any article chiefly used for the amusement of children or adults.” United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971). In Minnetonka Brands v. United States, 24 C.I.T. 645; 110 F. Supp. 2d 1020; 2000 Ct. Intl. Trade LEXIS 87; SLIP OP. 2000-86 (Ct. Int’l. Trade 2000) (“Minnetonka”), the court held that “an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality.” Minnetonka Brands v. United States, 24 C.I.T. 645; 110 F. Supp. 2d 1020; 2000 Ct. Intl. Trade LEXIS 87; SLIP OP. 2000-86 (Ct. Int’l. Trade 2000). In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; 1977 Cust. Ct. LEXIS 952 (Cust. Ct. 1977), the court reiterated the Topps court’s definition of a toy, and stated that “when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement.” Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; 1977 Cust. Ct. LEXIS 952 (Cust. Ct. 1977).
In addition, Note 1(v) to chapter 95, HTSUS, precludes Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function from being classified in the chapter. While containers are not specifically listed, “toilet articles” can clearly include containers. Textile items are also excluded from Chapter 95, HTSUS, when they have a utilitarian function. The subject merchandise is similar to the items listed in Note 1(v) in that it is a container made of textile; hence, it is classified outside of Chapter 95, HTSUS. CBP has consistently held that items of heading 4202, HTSUS, have a utilitarian purpose. Under the authority of Legal Notes 1(d) and 1(v) to Chapter 95, HTSUS, CBP has consistently precluded classification of these items from Chapter 95, HTSUS, because of this utilitarian purpose. See, e.g., NY N248810, dated January 13, 2014 (precluding a hard-sided clutch-style handbag from classification in heading 9503, HTSUS, because of its utilitarian function and because Note 1(d) precludes items of heading 4202, HTSUS, from classification in heading 9503, HTSUS); NY N219280, dated June 25, 2012 (precluding classification of novelty tote bags depicting a Jack-O-Lantern, a Ghost, a Bat and a Witch from Chapter 95, HTSUS, via Note 1(d) because of their utilitarian function); NY N217537, dated June 1, 2012 (precluding children’s novelty tote bags from Chapter 95, HTSUS, via Note 1(v) because of their utilitarian function); NY N198255, dated January 26, 2012 (precluding child’s novelty handbag designed and sized to contain the small personal effects that a child would carry on a daily basis from Chapter 95, HTSUS, via note 1(v) because of its utilitarian function); NY N141795, dated February 2, 2011(precluding a novelty travel bag from classification in Chapter 95, HTSUS, because of its utilitarian function and because Note 1(d) excludes items of heading 4202, HTSUS); NY N138557, dated January 7, 2011 (precluding novelty handbags designed to carry a child’s personal effects on a daily basis because of their utilitarian function and because of Note 1(d)); NY N048845, dated February 4, 2009 (precluding various tote bags from classification in Chapter 95 via Note 1(v)). Thus, if the subject merchandise has a utilitarian purpose and is described by the terms of heading 4202, HTSUS, it will be precluded for classification in heading 9503, HTSUS. As a result, we examine classification in heading 4202, HTSUS, first.
Heading 4202, HTSUS, is an eo nomine provision. Thus, in order to be classified in heading 4202, HTSUS, the subject merchandise must be either one of the named exemplars, or be “similar to” them. See EN 42.02; Totes, Inc. v. United States, 69 F.3d 495; 1995 U.S. App. LEXIS 29841; 17 Int’l Trade Rep. (BNA) 1929 (Ct. Int. Trade 1995); see also HQ H235569, dated May 17, 2013. Backpacks and handbags are named in the second portion of the heading. The instant backpacks and handbags are made of textile fabric and thus are described eo nomine therein. Additionally, backpacks are included as “travel bags” under Additional U.S. Note 1 to Chapter 42, HTSUS. A cardinal rule of statutory construction is that words are not superfluous within a statute. See Ruth Sturm, Customs Law & Administration § 51.6, 53 (Supp. 1995) (“significance should be given to every word of a statute.”) Therefore, the backpacks that are a subset of travel bags of Additional U.S. Note 1 need not be the same as those named in the heading text. They need not carry clothing or personal effects during travel. Instead, the instant backpacks and handbags consist of small compartments for carrying the trinkets of a child.
Furthermore, in many prior rulings, CBP has addressed the classification of items that, like the subject “Pack Mates,” had characteristics of both backpacks, which are a named exemplar of heading 4202, HTSUS, and toys of heading 9503, HTSUS. In these rulings, CBP found that merchandise whose zipper compartments were large enough to be used for carrying items had a utilitarian function that precluded them from classification as toys of heading 9503, HTSUS. These items were classified as backpacks of heading 4202, HTSUS. See, e.g., HQ 958308, dated November 7, 1995; HQ 963221, dated November 11, 2011; HQ 950752, dated January 9, 1992; HQ 963638, dated November 2, 2001; HQ 088665, dated June 14, 1991; HQ 966434, dated July 1, 2003; HQ 081729, dated February 16, 1990; HQ 952221, dated October 27, 1992.
In particular, in HQ 958308, CBP analyzed a novelty backpack in the image of the cartoon character the Tasmanian Devil. The item had a semi-plush body, arms and legs, a nine-inch compartment for storing items that could be closed by way of a hook-and-loop strip, and straps to allow user to wear the item on his back. There, CBP stated:
This item has been designed to act and function as a backpack. Great detail has been taken not only to make the straps durable but also to adding other features indicative of use as a backpack. For example, velcro strips have been placed on the back of the fangs so that the mouth which forms the cavity may be closed…. Your assertion that the “carrying capacity is limited” is similarly inconclusive. One must remember that this merchandise was designed with children in mind. As such, the carrying capacity of the compartments should be commensurate to the size of the objects that a child would normally carry. A child, unlike an adult, does not require excessive carrying space for such large items as books, wallets, etc. A child between the ages of three and six need only carry small items such as crayons, pens, candy, etc.
See HQ 958308.
The subject merchandise can also be distinguished from prior CBP rulings that classify novelty backpacks as toys of heading 9503, HTSUS. In those rulings, merchandise whose compartments are too small to be utilized as storage, and thus could not be considered utilitarian objects under Note 1(v) to Chapter 95, HTSUS. Furthermore, their other features were sufficiently whimsical or otherwise toy-like to justify classification as toys of heading 9503, HTSUS. See, e.g., NY N149435, dated March 18, 2011 (classifying a full-figured, three-dimensional plush representation of the Hello Kitty character with straps and a zippered pocket as a toy of heading 9503, HTSUS, because its amusement value outweighed its functionality because the zippered pocket had minimal storage capacity because of the item’s stuffing); NY N141659, dated February 1, 2011 (classifying two plush toys in heading 9503, HTSUS, because their amusement value far outweighed the functionality of the products as backpacks because the zippered pockets could not store anything other than tiny, non-bulky articles); NY N096083, dated March 22, 2010 (classifying a three-dimensional, full bodied textile representation of Spider-Man in heading 9503, HTSUS, because its amusement value outweighed its functionality as a backpack because the zippered pocket had minimal storage capacity); NY N028721, dated June 9, 2008 (classifying two full-bodied plush stuffed toy characters from “Sesame Street” in heading 9503, HTSUS, because their the zippered pockets have minimal storage capacity and are incapable of storing anything other than tiny, flat, non-bulky articles); NY N064115, dated June 25, 2009 (classifying a stuffed animal with a small zipper pocket in heading 9503, HTSUS, because its amusement value far outweighed its functionality as a backpack because the zippered pocket had minimal storage capacity); NY N166256, dated June 3, 2011 (classifying a stuffed giraffe with a very small pocket with a hook and loop closure at the top and two handles in heading 9503, HTSUS, because the item’s stuffing meant that the pocket had minimal storage capacity and is incapable of storing anything other than tiny, flat, non-bulky items); NY N172675, dated July 13, 2011 (classifying a full-figured plush giraffe with three small hook and loop closures and one zipper compartment in heading 9503, HTSUS, because the pockets have minimal storage capacity and are incapable of storing anything other than tiny, flat, non-bulky items); NY N072437, dated September 2, 2009 (classifying purses and wristlets that depicted full-figured representations of various breeds of dogs in heading 9503, HTSUS, because the limited storage capability of these items meant that the amusement value outweighed their functionality as real purses); NY N077383, dated October 6, 2009 (classifying a full-bodied plush dog with a zipper compartment and handles in heading 9503, HTSUS, because its amusement value outweighed its functionality as a purse because the zippered pocket had minimal storage capacity and was incapable of storing anything other than tiny, flat, non-bulky articles).
Because the subject merchandise is classified in heading 4202, HTSUS, it is precluded from classification in heading 9503, HTSUS. See Note 1(d) to Chapter 95, HTSUS. We acknowledge that Requestor’s submission analyzes the factors to determine principal use laid out in United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976), and that Requestor argues for classification in heading 9503, HTSUS, based on these factors. However, because we find that the subject merchandise is precluded from classification in heading 9503, HTSUS, we need not undertake a Carborundum analysis.
HOLDING:
By application of GRI 1, the subject merchandise is classified in heading 4202, HTSUS. It is specifically provided for in subheading 4202.92.30, HTSUS, which provides for “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other.” The column one, general rate of duty is 17.6%.
You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on CBP’s website, located at www.cbp.gov by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division