OT:RR:CTF:CPMMA H315362 KSG
Heather C. Litman, Esq.
Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP
707 Wilshire Boulevard
Suite 4150
Los Angeles CA 90017-3720
[email protected]
RE: Reconsideration of NY N314651; tariff classification of a textile bag
Dear Ms. Litman:
This is in response to your request for reconsideration of New York Ruling Letter (NY) N314651 submitted on behalf of Mattel import Services Corp., regarding the tariff classification of a textile bag in the Harmonized Tariff Schedule of the United States (HTSUS). A plush baby Yoda doll that was classified in heading 9503, HTSUS, is not the subject of this reconsideration. At the request of counsel, a teleconference was held on the matter on December 29, 2020, where counsel demonstrated the features of the baby yoda doll and the textile bag. A second conference was held at the request of counsel on February 10, 2021. We have also reviewed counsel’s second submission dated March 3, 2021.
In NY N314651, dated October 13, 2020, CBP classified a textile container sold with a plush baby Yoda doll in subheading 4202.92.91, HTSUS, the provision for “…traveling bags, … knapsacks and backpacks, handbags, shopping bags, wallets, purses, … sports bags, … and similar containers, … of textile materials, ….”. CBP ruled that the doll and container were not a set as described in GRI 3(b), HTSUS, and were therefore classified separately
General Rule of Interpretation (GRI) 3 provides that when, by application of Rule 2(b), components are classifiable in two separate headings, classification shall be affected as follows:
the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a) shall be classified as if the consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
EN X to GRI 3(b) states that for the purposes of GRI 3(b), the term “goods put up in sets for retail sale” means that the goods under consideration must (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking.
Chapter note 1(d), of Chapter 95, HTSUS, excludes containers of heading 4202 from Chapter 95.
Counsel concedes that a toy that is actually and primarily a functional bag or other container must be classified in heading 4202 but argues that because the items are prima facie classifiable in two different headings and are put up in a manner suitable for sale directly to users without repacking, they clearly meet the EN X to GRI 3(b) criteria (b) as well. We disagree. The doll and textile bag are not put up together to meet a particular need or carry out a specific activity because much like a purse or tote bag, the textile bag is able to be slung over the shoulder to transport articles of many kinds. The Yoda doll is easily removeable from the textile bag and is not attached in any way. There is nothing that dedicates the use of the textile bag to the doll with which it is packaged nor is it needed to amuse a child playing with the doll. Rather, the container is a utilitarian article specifically excluded from classification in chapter 95. Therefore, the Yoda doll and textile bag, though packaged together, do not create a GRI 3(b) set and are classified separately
Counsel cited to two Headquarters Rulings (HQ) and four New York rulings (NY) which she contends supports her position. However, the rulings cited pertain to plastic, textile containers which were deemed not to be classifiable in heading 4202. Hence, the exclusionary note to Chapter 95 did not apply.
For instance, in HQ H075935, dated May 11, 2011, CBP held that a toy pet carrier was classified in heading 9503 and not heading 4202 because due to the size (41/2“ in width x 10-1/2” in length x 7” in depth) and construction, it was designed as a toy for amusement and not for its utility. In HQ 958180, dated January 18, 1996, replicas of period travel cases proportional to 18 inch dolls were held to be toys in heading 9503, HTSUS, because of their small size and lack of utility as travel cases.
Further in NY H81709, dated June 18, 2001, CBP classified a portable doll bed in heading 9503, HTSUS, as a toy. In NY 851767, dated April 24, 1990, CBP classified a doll baby carrier that is a replica of ones used by someone to hold a baby next to their body as a toy of heading 9503, HTSUS. In NY F81124, dated January 14, 2000, a
doll's backpack with a sewn-in changing pad, and a harness for a 23 inch doll sized for use with a 23 inch doll was classified in heading 9503, HTSUS. In NY A82550, dated April 15, 1996, a cloth tote in the shape of a barn with ribbon to hold three plush toy cows and a Velcro flap window was classified in heading 9503, HTSUS.
All these cases involve containers not meeting the description of a container of heading 4202 and thus, not excluded from classification in heading 9503.
Lastly, counsel argues that the container is an accessory. Insofar as the term “accessory” is concerned, the Court of International Trade (“CIT”) has previously referred to the common meaning of the term because the term is not defined by the HTSUS or its legislative history. See Rollerblade, Inc. v. United States, 24 Ct. Int’l Trade 812, 815-819 (2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002)). We also employ the common and commercial meanings of the term “accessory”, as the CIT did in Rollerblade wherein the CIT derived from various dictionaries “that an accessory must relate directly to the thing accessorized.” In Rollerblade, the CAFC noted that “an ‘accessory’ must bear a direct relationship to the primary article that it accessorizes.” 282 F.3d at 1352. In support of its finding that the protective gear was not an accessory to roller skates, the CAFC also noted that the “protective gear does not directly affect the skates’ operation.” Id. at 1353. In this case, the container in no way affects the operation of the baby yoda doll, either directly or indirectly. Therefore, the container at issue is not considered an accessory for the purposes of the HTSUS.
As the Yoda doll and textile bag do not meet the criteria for a set under GRI 3(b), they are classified separately. As the textile bag meets the terms of heading 4202, HTSUS, in that it can organize, store, protect and carry any number of items (see Otter
Prods., LLC v. United States, 70 F. Supp. 3d 1281 (Ct. Intl Trade 2015), aff’d 834 F. 3d 1369 (Fed. Cir. 2016)), the textile bag is classified in heading 4202, specifically in subheading 4202.92.91, the provision for "…traveling bags, … knapsacks and backpacks, handbags, shopping bags, wallets, purses, … sports bags, … and similar containers, … of textile materials, …: Other: With outer surface … of textile materials: Other: With outer surface of textile materials: Of man-made fibers.
Therefore, for the reasons specified above, we affirm the holding in NY N314651.
Sincerely,
for
Craig T. Clark, Director
Commercial and Trade Facilitation Division
cc: NIS Vikki Lazaro, NCSD
NIS Roseanne Murphy, NCSD