CLA-2 OT:RR:CTF:TCM H251422 KSG
Port Director,
Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd. Suite 1400
Long Beach, CA 90802
Re: Application for Further Review of Protest No. 2704-14-100056; Classification of
“Back Buddies”
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-14-100056, timely filed on January 8, 2014, on behalf of Alliance Publishing Group, Inc. (“Alliance” or “Protestant”). The AFR concerns the classification of “Back Buddies” under the Harmonized Tariff Schedule of the United States (“HTSUS”). A teleconference was conducted on August 7, 2014, and two supplemental submissions, dated August 28, 2014, and September 17, 2014, were also considered.
FACTS:
This case involves various types of “Back Buddies,” which are stuffed, plush items representing figures from the Star Wars movies, such as Yoda, Darth Vader, and Chewbacca. Each has arms, legs, a torso and a face, and is a three-dimensional representation of the character. Each model has straps and is designed to be worn on the user’s back. Each model also has a zipper compartment that can hold small items. The “Back Buddies” are marketed to Disney Theme parks as well as to online retailers such as Amazon.
A sample of the Yoda Back Buddy was examined by this office. It measures approximately 25 inches in height overall. The height of the zipper compartment is approximately 11 inches, and its width is approximately nine inches. Its face is made of soft polyester fabric, and its coat and pants are made of polyester. Its arms and legs are clearly defined appendages, and its face contains clearly recognizable features.
The subject merchandise was entered on August 27, 2012, and September 17, 2012, under subheading 9503.00.00, HTSUS, as “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.” U.S. Customs and Border Protection (“CBP”) liquidated the merchandise on August 9, 2013, and August 23, 2013, in subheading 4202.92.30, HTSUS, as “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 importer filed this protest and AFR on January 8, 2014, claiming classification as entered in subheading 9503.00.00, HTSUS.
ISSUE:
Whether “Back Buddies” are classified as backpacks of heading 4202, HTSUS, or as toys of heading 9503, HTSUS?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2704-14-100056 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) and (b) because the Port’s decision is alleged to be inconsistent with a ruling of CBP’s Commissioner or by his designee, or with a decision made at any port with respect to the same or similar merchandise. Protestant also alleges that this protest concerns facts or legal arguments which have not been decided on by CBP or the Customs courts. Specifically, the Protestant argues that the Port’s liquidation was inconsistent with HQ 081729, dated February 16, 1990. Protestant also argues that the determination of whether the essential character is imparted by the figure or by the pouch section of the Yoda Back Buddy in particular has not been decided by CBP or the customs courts.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (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 GRIs 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative section and chapter notes also apply, unless the context otherwise requires.
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
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). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. 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; and HQ 963638, dated November 2, 2001. Accordingly, we must determine which chapter properly includes the subject merchandise.
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 (C.A.F.C. 1995); See Also HQ H235569, dated May 17, 2013. Backpacks are named in the second portion of the heading. The subject items are backpacks because they have zipper compartments and straps so that users can wear them on their backs. In addition, these items are made of textile fabric; as such, they are described eo nomine in heading 4202, HTSUS. Furthermore, 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 consist of small compartments for carrying the trinkets of a child.
Neither the HTSUS nor the ENs define the term “toy.” In United States v. Topps Chewing Gum, Inc., 440 F. 2d 1384 (C.C.P.A.1971), the court defined “toy” as “any article chiefly used for the amusement of children or adults.” In Processed Plastic Co. v. United States, 473 F.3d 1164, 1170 (Fed. Cir. 2006), the court held that “the principal use of a "toy" is amusement, diversion, or play … rather than practicality.” In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; (Cust. Ct. 1977), the court reiterated the Topps 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.” Various factors can be then looked at as suggestive but not dispositive to determine if an article has the principle use as amusement. Such factors include the general physical characteristics, expectation of the ultimate purchaser, usage, and economic practicality. In Simon Marketing, Inc. v. U.S., 395 F. Supp. 2d 1280 (Ct. Intl. Trade 2005), the court examined a watch embellished with characters from movie “A Bug’s Life.” Using the same factors, the court found that “based on its shape, design, and minimal interactive value” the watch was not principally used for amusement. Id at 1288.
Furthermore, in many prior rulings, CBP has addressed the classification of articles that, like the subject “Back Buddies,” have characteristics of both backpacks 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 therefore classified as backpacks of heading 4202, HTSUS.
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 bag 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.
In the present case, the zippered compartment of the back buddies is not large enough to carry large items, such as textbooks, that an adult would expect to carry, but it is sufficiently large to carry the smaller items that a child would carry. Furthermore, like the Tasmanian Devil backpack of HQ 958308, the subject “Back Buddies” were designed to act and function as backpacks. For example, their straps are designed to allow the user to wear them on the back, and they are durable. As a result, they are designed as backpacks, and their carrying capacity is sufficient for the small items that a child would carry. As such, they have a utilitarian function of being able to carry small items, and they are described by the terms of heading 4202, HTSUS. Further, in the instant case the amusement of the article is incidental to the utilitarian purpose.
The subject “Back Buddies” are distinguishable from prior CBP rulings that classify novelty backpacks as toys of heading 9503, HTSUS. In those rulings, CBP classified merchandise whose compartments are too small to be utilized as storage, and thus could not be considered utilitarian objects. In addition, the other features of the merchandise classified in these rulings were sufficiently whimsical or otherwise toy-like to justify classification as toys of heading 9503, HTSUS.
Lastly, the conclusion that the subject merchandise is precluded from heading 9503, HTSUS, when it has a utilitarian purpose is consistent with prior CBP rulings. CBP has consistently precluded classification of similar items from Chapter 95, HTSUS, because of this utilitarian purpose, under both the authority of Ideal Toy Corp. and Note 1(v) to Chapter 95, HTSUS (now codified at Note 1 (w)).
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. Protestant argues for classification in heading 9503, HTSUS, based on United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A. 1976). However, because we find that the subject merchandise is precluded from classification in heading 9503, HTSUS, we need not undertake a Carborundum analysis, as heading 4202, HTSUS, is not a use provision.
In its September 17, 2014, supplemental submission, protestant submitted evidence that the Chewbacca Back Buddy had been tested by SGS, a laboratory in China that tests products on behalf of leading toy manufacturers and retailers in the United States. Protestant notes that the ASTM test performed by SGS is a standard toy test that is performed pursuant to the Consumer Product Safety Improvement Act. Protestant argues that the performance of these tests, and their conclusions as to the safety of the subject merchandise for difference ages of children, support the classification of the subject merchandise as a toy of heading 9503, HTSUS. The fact that the Consumer Product Safety Commission considers an article to be a toy under their statutory authority has no legal significance as to whether the article is classified as a toy under the HTSUS.
Lastly, protestant also argues that the “Back Buddies” should be classified pursuant to GRI 3(b) because two headings- i.e., headings 4202 and 9503, HTSUS, equally describe the merchandise. We do not agree that the two headings equally describe the article and have classified it at GRI 1.
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 instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, 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 other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
Attn: Don Dorsett, Import Specialist