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HQ 965458




September 19, 2002

CLA-2: RR:CR:TE ASM 965458

CATEGORY: CLASSIFICATION

TARIFF NO.:4202.92.4500, 9502.10.0060

Port Director
U.S. Customs Service
Los Angeles-Long Beach Seaport
Shoreline Building
301 E. Ocean Blvd., 14th Floor
Long Beach, CA 90802

RE: Decision on Application for Further Review of Protest No. 2704-01-100684, Concerning the Classification of the “Fashion Polly Backpack” and “Polly” Plastic Human Figure and Accessories

Dear Madam:

This is a decision on a protest timely filed on March 8, 2001, on behalf of Mattel, Inc., against your decision in the classification and liquidation of the “Fashion Polly Backpack” and “Polly” plastic human figure and accessories put up together for retail sale and entered in 1999. A sample was submitted and has been reviewed by this office.

FACTS:

The merchandise has been identified as the “Fashion Polly Backpack” and “Polly” plastic human figure and accessories, style #25598-9993. These articles are imported together and sold at retail with a backpack constructed entirely of clear Polyvinyl Chloride (PVC) plastic sheeting. The backpack measures 2 inches x 8 inches x 10 inches, is slightly rounded at the top and has a heavy duty plastic zipper that extends the entire periphery of the front edge of the pack to the opposing corner and into one inch of the base. The back has been fitted with two shoulder straps that appear to be of man-made and/or plastic treated fibers. Two plastic buckles have been fitted to each strap to accommodate adjustment and there is a woven hang loop at the top of the pack.

The interior of the pack is comprised of a single open compartment and has been fitted with a cardboard insert depicting a bedroom with windows. The cardboard insert is temporarily secured to the interior of the backpack by two large thread stitches on each side. A removable and fitted molded plastic insert has been specifically shaped to form fit the entire interior compartment and encases the small plastic human figurine doll (approximately 3.5 inches tall), and the doll’s clothing, shoes, and other accessories. This plastic insert is merely designed to temporarily showcase the small plastic doll/accessories during retail sale and has been designed to be opened and thrown away by the end user.

On December 8 and December 15, 2000, the subject entries were liquidated as presented by the importer on the commercial invoice and entry. Customs classified and liquidated the backpack in subheading 4202.92.4500, HTSUSA, which provides for containers with outer surface of sheeting of plastic, “Travel, sports and similar bags”, and the plastic doll/accessories were classified in subheading 9502.10.0060, HTSUSA, as “Dolls representing only human beings and parts and accessories thereof”. The importer timely protested liquidation of the entries with respect to the subject merchandise, style #25598-9993, and now asserts that the backpack, plastic doll, and accessories are all classified as a toy set within subheading 9503.70.0000, HTSUSA.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The subject merchandise is imported, packaged, and marketed as a retail set, and may be classified within two separate headings. However, GRI 1 specifically states that classification shall be determined according to the terms of the headings and any relative section or chapter notes, and according to the provisions of Rules 2, 3, 4, and 5, “provided such headings or notes do not otherwise require” (emphasis supplied).

The HTSUSA, sets forth two Legal Notes that specifically preclude classification of the subject articles as a set within either of the relevant chapters. Classification within Chapter 42 is subject to Legal Note 1(l), which specifically notes that the chapter does not cover “Articles of chapter 95 (for example, toys, games, sports equipment)”. Classification within Chapter 95 is subject to Legal Note 1(d), which excludes “Sports bags or other containers of heading 4202, 4303 or 4304”. Clearly, the doll and accessories are separately classified in Chapter 95, HTSUSA. Thus, it is first necessary to determine if the PVC backpack is separately classifiable as a container of heading 4202, HTSUSA.

Heading 4202, HTSUSA, specifically covers various cases and containers, and provides as follows:

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.

The Additional U.S. Notes to Chapter 42 state, in relevant part: “1. 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”. The EN to 4202 indicates that the heading covers only the articles specifically named and similar containers. The appropriate subheading for articles, which are eo nomine provided for in the second part of heading 4202, HTSUSA, is determined by the constituent material of the outer surface. See Additional U.S. Note 2, to Chapter 42, HTSUSA.

In Headquarters Ruling Letter (HQ) 962643, dated July 9, 2001, Customs determined that backpacks composed, in part, of PVC plastic sheeting are eo nomine provided for in heading 4202, HTSUSA. In that ruling, Customs concluded that the term “backpack” is commonly understood to be a pack or knapsack used to carry personal effects which include equipment, clothing and food while being worn on the back of the user. See the following rulings, which also classified backpacks in heading 4202, HTSUSA: HQ 963340, dated February 5, 2002; HQ 964444, dated December 18, 2001; and HQ 964540, dated July 27, 2001

The subject PVC backpack is a full-sized backpack designed to meet the smaller proportions of a child. The backpack is a spacious, functional, carrying bag that has been designed to be used by a child. Although the backpack lacks pockets or small storage compartments, it is spacious enough to store, protect, and transport large personal items such as clothing or books. The front of the pack, when completely unzipped, allows the entire front panel to open allowing easy access to the spacious interior compartment. This permits the user to easily store, organize, and remove large items. Thus, it is our determination that the subject PVC backpack is classified in heading 4202, HTSUSA, which provides for bags “With outer surface of sheeting of plastic”.

The doll and accessories are specifically provided for in Ch. 95, HTSUSA. As such, these articles are separately classified in heading 9502, HTSUSA, as “Dolls representing only human beings and parts and accessories thereof”.

Based on the foregoing, it is our determination that at the time of liquidation of this merchandise, identified as style #25598-9993, Customs correctly classified the articles separately in subheadings 4202.92.4500, HTSUSA, and 9502.10.0060, HTSUSA. This office is presently conducting a search to determine if the issuance of this decision will necessitate modification or revocation of prior Customs Rulings, pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)).

HOLDING:

The subject backpack, identified as part of style # 25598-9993, is correctly classified in subheading 4202.92.4500, HTSUSA, 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: Other”. The general column one duty rate is 20 percent ad valorem.

The subject doll and accessories are classified in subheading 9502.10.0060, HTSUSA, which provides for, “Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed, Other”. This provision is free at the general column one duty rate.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

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