HQ 958308

November 7, 1995

CLA-2 R:C:T 958308 jb

CATEGORY: Classification

TARIFF NO.: 4202.92.3020

Ned H. Marshak, Esq.

Natouchka Patrice Rampy, Esq.

Sharretts, Paley, Carter & Blauvelt, P.C.

67 Broad Street

New York, NY 10004

RE: Classification of a transformable novelty backpack; principal use is
utilitarian; practical purpose of carrying personal effects related to
age of user

Dear Mr. Marshak and Ms. Rampy:

This is in regard to your letter dated March 28, 1995, on behalf of your
client, Tyco Industries, Inc., requesting a classification ruling for an
item described as a \"Tasmanian Devil Transformable Buddy/Backpack\"
imported from China. A sample was submitted to this office for
examination.

FACTS:

The subject merchandise consists of a novelty backpack which has a
semi-plush body, arms and legs. The backpack is in the image of the
Tasmanian Devil, a trademark of Warner Brothers. The Tasmanian Devil
features an oversized head and a large 8-1/2 inches by 6 inch mouth with
a 6 inch deep cavity. The mouth has a double row of long fang-like teeth
which can be closed by attaching the velcro strips concealed beneath the
fangs. The mouth portion forms a cavity into which personal effects may
be placed. The rear portion has a large pouch secured by means of velcro
which is also meant to carry personal effects. The backpack straps are
sewn to the upper back and affixed to the leg portions with velcro, the
latter permit the straps to be stored in the back pouch when not in use.
The Tasmanian Devil contains very loose stuffing material behind its
mouth and throughout the torso, and he wears a firmly secured cotton
denim jacket ( or a leather (PVC) jacket) with an upturned collar.

In your letter you state that it is your opinion that the article\'s
essential character is imparted by the toy figure and that accordingly
classification is in heading 9503, HTSUSA. In support of your contention
that the article is classifiable as a toy in heading 9503, HTSUSA, you
make reference to the following:

1\. HQ 952186, dated April 29, 1993;

2\. United State v.Topps Chewing Gum, 58 C.C.P.A. 157, C.A.D. 1022
(1971);

3\. Globe Watch Strap Corp. v. United States, 30 Cust. Ct. 440, Abs. No.
57299 (1953);

4\. HQ 954239, dated September 14, 1993;

5\. A series of decisions in the September 21, 1994 Customs Bulletin, at
pp. 18-3, namely:

a\. HQ 950941, dated July 22, 1992;

b\. HQ 089523, dated January 6, 1992;

c\. NYRL 863525, dated June 14, 1991;

d\. NYRL 863507, dated June 13, 1991;

e\. NYRL 861617, dated March 29, 1991; and

f\. NYRL 855676, dated September 7, 1990.

6\. General Notice published in the March 1, 1995 Customs Bulletin, at
p. 10;

7\. HQ 077786, dated May 30, 1986;

8\. HQ 077300, dated May 30, 1986;

9\. HQ 952221, dated October 27, 1992;

10\. HQ 087792, dated December 18, 1990;

11\. HQ 950752, dated January 9, 1992;

12\. The Tasmanian Devil\'s principle use;

13\. The manner in which it is marketed;

14\. The weight and costs of its component materials.

ISSUE:

Whether the subject \"Tasmanian Devil Buddy and Backpack\" is properly
classifiable as a toy in heading 9503, HTSUSA, or as a backpack in
heading 4202, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification shall be
determined according to the terms of the headings and any relative
section or chapter notes, taken in order. Merchandise that cannot be
classified in accordance with GRI 1 is to be classified in accordance
with subsequent GRI.

No single heading within the Nomenclature includes goods of this type.
The \"Tasmanian Devil\" is a composite good made up of a stuffed toy and
a backpack component. Although the term \"toy\", in general is not
specifically defined in the tariff, the Explanatory Notes to the
Harmonized Commodity Description and Coding System (EN) to chapter 95,
HTSUSA, indicate that this chapter covers toys of all kinds whether
designed for the amusement of children or adults. It has been Customs
position that the \"amusement\" requirement means that toys should be
designed and used principally for amusement and that they should not
serve a utilitarian purpose.

\"Backpack\" is similarly not defined in the tariff, but the term
generally indicates an article carried on the back designed to carry or
contain personnel effects during travel.

General Rule of Interpretation (GRI) 3 states:

(a). 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.

As both the heading which describe toys (heading 9503, HTSUSA) and
backpacks (heading 4202, HTSUSA), is equally descriptive of the subject
merchandise, we are required to continue to the next principle, i.e. GRI
3(b):

(b). 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 they consisted of the material or component which gives them their
essential character, insofar as this criterion is applicable.

The EN to GRI 3(b) state:

(VII). In all these cases the goods are to be classified as if they
consisted of the material or component which gives them their essential
character, insofar as this criterion is applicable.

(VIII). The factor which determines the essential character will vary as
between different kinds of goods. It may, for example, be determined by
the nature of the material or component, its bulk, quantity, weight or
value, or by the role of a constituent material in relation to the use
of the goods.

In HQ 952186 the issue was the classification of 3-1/2 inches high
plastic cartoon representing an M & M candy which featured an interior
cavity on its reverse side. Citing Ideal Toy Corp. v. United States, 78
Cust. Ct. 28, C.D. 4688 (1977), the court therein stated, \"\[W\]hen
amusement and utility become locked in controversy, the question becomes
one of determining whether amusement is incidental to the utilitarian
purpose, or the utility purpose incidental to the amusement\". You
conclude that as the toy M & M had a dual use, i.e., part toy and part
dispenser, and was nonetheless classified as a toy, the subject
Tasmanian Devil should similarly be classified as a toy, regardless of
the fact that it also functions as a backpack. In citing both HQ 952186
and Ideal Toy Corp, one must not lose sight of the merchandise that was
being analyzed; i.e., a toy M & M figure in the former and an inflatable
float in the latter. In both those instances the importers failed to
prove that these articles principally served a utilitarian purpose. In
the case of the toy M & M figure, after the candy became consumed, the
merchandise did not lose its inherent ability to provide amusement and
enjoyment to children. Similarly, in the case of the inflatable float,
the court found that the play float did not provide safe support for a
child since it could easily be overturned by a simple rocking motion.
Accordingly, the prime motivation for a parent in seating a child in the
float was for the amusement of the child and not to safely support the
child. Thus, in both those cases the determining factor was, as you
correctly cited, whether amusement was incidental to the utilitarian
purpose or the utility purpose incidental to the amusement. For the
particular merchandise of the M & M toy figure and the play float,
utility was found to be incidental to the actual amusement provided to
the child by that merchandise.

In United States v. Topps Chewing Gum, the court stated \"if the purpose
of an object is to give the same kind of enjoyment as playthings give,
its purpose is amusement, whether the object is to be manually
manipulated, used in a game, or, as here, worn.\" The merchandise in
this case was an assortment of round metal disks with a metal pin
attached to the back variously labeled as \"Wise Guy Buttons\", \"Smarty
Buttons\", and \"Ugly Buttons\". The issue revolved around whether when
worn, these objects functioned as toys or simple buttons of metal. This
straight forward classification distinction is less complex because it
does not involve the essential character determination required of a
composite good, as in the subject case of the Tasmanian Devil. The
Tasmanian Devil, though amusing to children, also clearly serves the
practical purpose of doubling as a backpack. The question then becomes
an issue of principal use by the target age group, in this case
children. The primary function of the buttons in Topps was simply to
amuse children with the humorous sayings and/or designs printed on the
front of the objects; the primary function of the Tasmanian Devil is to
carry the small personal belongings of children in a manner that is most
delightful (while also being practical) to them.

In Globe Watch Strap Corp. v. United States, a leather cowboy belt was
determined by the court to be a plaything, exclusively used by children
for their amusement. The belt\'s purpose was found not to be an item of
clothing or as an accessory thereof, but as a toy which ultimately
enabled children to hold a toy gun and wooden bullets and play out the
role of cowboys. The court in Globe stated, \"In construing the language
of the toy paragraph, supra, however, its full import is not determined
in the ascertainment of by whom an article is chiefly used; it is
necessary also to consider for what purpose it is used.\" The court\'s
finding similarly holds true for the subject Tasmanian Devil. Though we
do not argue with the statement that this item will be amusing to
children, that does not detract from the fact that the Tasmanian Devil
was also designed to carry out a functional purpose, i.e, to be used as
a backpack by children, and thus to carry a variety of their personal
belongings..

You make reference to three recent decisions wherein Customs recognized
the broad scope of the tariff toy provisions and the fact that many
articles with utilitarian features are classifiable as toys. Namely, you
cite HQ 954239, addressing a toy bed tent, a series of decisions
published in the Customs Bulletin dated September 21, 1994, addressing
toy bubble necklaces, and a general notice published in the Customs
Bulletin, dated March 1, 1995, addressing Customs intention to reverse
the current practice of classifying all dress up textile clothing as
wearing apparel. As to HQ 954239, the holding in that ruling made clear
that the tent at issue neither met the definition of \"camping goods\"
nor of \"bedding\". The toy bed tent did not provide the protection from
inclement weather required of an outdoor camping tent nor exhibited any
signs of durability. Similarly, the intended use of the tent was not as
bedding. However, the tent did meet the definition of toy in that it
served no other function than to amuse children by allowing them to
pretend to be camping outdoors.

We find no weight to your argument that the features of the Tasmanian
Devil are purely for amusement value and that the Tasmanian Devil is
designed to function indoors, \"permitting a child and his buddy to
pretend to take long trips with their belongings. The plush outer
covering and weight of the Tasmanian Devil confirms that its will not be
principally used in the same manner as a traditional outdoor backpack.\"
By definition, the word \"backpack\" does not indicate an article which
is for outdoor use only. A child need not have to \"pretend\" to take
long trips with their belongings. In all probability a child between the
ages of three and six could easily use the Tasmanian Devil to carry
small items with him/her to grandmother\'s house or to school. This
backpack is clearly not the same type of article that would be used
during an outdoor sport activity such as hiking or backpacking. There
are many types of backpacks; the traditional outdoor type to which you
refer, and the novelty backpack, exemplified by the subject sample.

In the rulings addressed in the September 21, 1994 issue of the Customs
Bulletin, Customs held that certain toy bubble necklaces were
classifiable as toys, principally for the purpose of amusement rather
than as jewelry. The rationale in this determination was that children
purchasing the bubble necklaces did not intend to wear these items for
ornamentation, but rather intended to play with the merchandise. The
textile cord was found to be designed to enable the child to wear the
bottle and bubble solution in order to repeatedly blow bubbles. Once the
solution was consumed, the child would probably discard the necklace.
Thus, the sole function of the cord in this case was merely to hold the
small bottles together neatly in place for the child.

The straps on the Tasmanian Devil however, serve an actual function. We
do not agree with your assertion that a child would not intend to wear
the Tasmanian Devil as a traditional backpack, but rather would intend
to play with the merchandise for the purpose of amusement, undoing the
straps and pulling the Tasmanian Devil as if he were on a leash or, in
the alternative, fastening the straps through the leg loops, pretending
that the Tasmanian Devil is hanging on his back. Unlike the textile cord
in the bubble necklaces which served no function other than holding the
bottles and bubble solution together, the textile straps featured on the
Tasmanian Devil play an important role in the function of the backpack.
The straps are neither flimsy in construction nor are placed on the back
on the Tasmanian Devil in a haphazard fashion. They are sewn on in a
very durable manner at the base of the neck, and feature stitching along
the length of the straps to prevent the straps from fraying. These
cautionary steps in the construction of the straps clearly show that the
straps will serve an important function in allowing the child to place
the straps over his/her shoulders to carry a variety of small items for
repeated use. If the child were to unfasten the straps and pull the
Tasmanian Devil along as if he were on a leash, this in our opinion,
would be a fugitive use of the straps.

In the general notice published in the March 1, 1995, issue of the
Customs Bulletin, Customs stated its intention to reverse the current
practice of classifying all dress up textile clothing as wearing apparel
provided the sets are generally recognized as not normal articles of
apparel. Additionally, Customs stated its intention to reinstate HQ
083229 which held that articles, sized to fit pre-school girls and meant
to be incorporated into children\'s play activity, were classified as
toys, based on their \"size and limited capacity\", and the fact that
they were \"packaged and sold as toys\", and are so perceived by
consumers. You then conclude that the subject Tasmanian Devil should be
classified as a toy, since it is meant to be \"incorporated into a
child\'s play activity, has limited carrying capacity when compared to
its relatively large size, and is packaged and sold as a toy.\" Although
it is true that Customs will no longer be looking at all dress up
textile clothing sets as wearing apparel, you fail to address the
specific requirements which must be met in order to qualify those dress
up sets as toys and not wearing apparel. These requirements include
costumes which are of a flimsy nature and construction, and lack
durability (See e.g. HQ 958061, dated October 3, 1995, which classified
a girls\' ballerina costume as a toy). HQ 083229 was reinstated for the
simple fact that the children\'s dress up sets therein were not durable
articles of apparel. They were limited in their capacity in that they
could only be worn once or twice given the flimsy construction, and
would serve solely to amuse the child.

The same cannot be said of the Tasmanian Devil. Though the features of
the Tasmanian Devil are amusing, these very same features are what will
entice and draw the child to want to own the Tasmanian Devil. We feel
that this article will not be principally incorporated into a child\'s
play activity. 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. The back
of the Tasmanian Devil forms an even bigger compartment where the child
can place and carry small items. This second compartment may also be
closed by way of the velcro strips which are placed at the top edge of
this \"pocket\". 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.

You referred to several prior Customs decisions which distinguished toy
backpacks from functional articles. In HQ 077300, an 18 inch \"Bear
Buddy\" in the image of a Panda Bear, with stuffed head, and appendages,
a body cavity devoid of filling, a 14 inch by 10 inch compartment, and
backpack straps was classified as a backpack; in HQ 077786, a 12 inch
\"Hug A Pet\", with stuffed head and appendages, a body cavity devoid of
filling, a 4-1/2 inches by 4 inch nylon pouch with zipper closure, and
textile harness straps was classified as a toy figure; HQ 077786 also
referenced HQ 076982, dated October 24, 1985, which classified a 12 inch
\"Koala Bear\" with stuffed head and appendages, a body cavity devoid of
filling, an interior compartment, and textile harness straps as a toy.
In the analysis portion these three rulings made reference to HQ 076982,
which determined that the utilitarian function of a \"candy bear\"
therein at issue, was incidental to the play value particularly due to
the small size of the merchandise, which confined it to use by 2 to 5
year old children, and its minimal storage space. In reviewing those
rulings we find that the analysis in HQ 076982 is incorrect and that
consequently the classification determinations in both HQ 077786 and HQ
076982 are in error. Though the outcome in HQ 077300 is correct, the
analysis portion referencing HQ 076982 is similarly in error. As we have
discussed in the case of the subject Tasmanian Devil, the merchandise
will be used by children between the ages of three to six. These
children neither require adult size backpacks, nor their large carrying
capacities. There is nothing in the definition of backpack which
remotely suggests that to qualify as such, the compartments must be in
excess of a required measurement or that the compartments must
accommodate large items. Accordingly, this office is in the process of
revoking HQ 077786 and HQ 076982, and modifying HQ 077300, to conform
with the correct classification of the merchandise, i.e., as novelty
backpacks in heading 4202, HTSUSA.

Finally, you refer to a series of Customs rulings classifying
merchandise in heading 4202, HTSUSA, which you claim are \"readily
distinguishable from the present Tasmanian Devil: HQ 952221, addressing
a children\'s bag, \"Yantle Girl\", printed with a caricature and
featuring arms and feet appendages, and a carrying handle; HQ 087792,
addressing bags to which either reindeer arms, legs, ears and antlers
were attached, or in another style, a bag shaped like a pumpkin with
arms, legs, eyes, and mouth attachments, both bags featured carrying
handles; and HQ 950752, addressing \"Hoopla Animal Packers\" in which
the carrying compartment formed the body of a toy animal figure. You
contend that unlike the merchandise in the above mention rulings wherein
the bodies per se form the backpack compartments, the body of the
Tasmanian Devil does not form a backpack compartment. You state that
\"the minimal carrying pouch is part of the toy\'s \"clothing\", which
can be transformed into a small rear carrying compartment.\" Though all
the merchandise above was classified in heading 4202, HTSUSA, the
merchandise in HQ 952221 and HQ 087792 was classified under the
provision for \"handbags\", and the merchandise in HQ 950752, were
classified under the provision for \"backpacks\". Thus even within this
group of merchandise which you claim is similar, yet distinguishable
from the Tasmanian Devil, there are subtle differences in the
classification provisions. Heading 4202, HTSUSA, is a broad provision,
basically providing for all articles designed to carry or transport
other articles, in one way or another, however designed.

You claim that the Tasmanian Devil does not feature a true compartment,
but instead, features a \"minimal pouch\" which is actually part of the
articles\'s clothing. We disagree. The Tasmanian Devil conveniently has
not one but two very functional compartments. First, it has a more than
adequate compartment which is not, as you argue, simply part of the
Tasmanian Devil\'s clothing. The jacket worn by the Tasmanian Devil is
not a separate article simply worn as a garment. When the velcro strips
are undone, what is revealed is an actual compartment which in essence
is the body of the Tasmanian Devil. There is no hard filler inside like
the stuffing found on the head and appendages, but very loose and
minimal filling material which does not affect the storage capacity at
all. Secondly, the mouth opening is an additional yet smaller
compartment comprising the body of the Tasmanian Devil, which is also
capable of carrying a variety of small objects, and which can be closed
by way of the velcro strips located at the back of the fangs.

Finally, you conclude that the Tasmanian Devil\'s principal use will be
to function as a toy, and that the manner in which it is marketed and
the weight and costs of its materials confirm your assertion. As we
discussed above, great care has been taken to include backpack features
on the Tasmanian Devil, particularly, the durable straps, velcro strips,
and the more than adequate carrying compartments. One must remember that
this merchandise is being advertised to a particular market, that is,
children between the ages of three to six years old. At this time,
children invariably will have a number of small items with which they
identify and which they will bring along where ever they go. It is also
true that children of this age group attend day care or pre-school
outside the home. The Tasmanian Devil is a popular cartoon character
easily recognized by children, perhaps one they often watch on
television at home. This very fact makes the Tasmanian Devil very
attractive to children. It also makes that transition from home
environment to \"school\" environment easier, allowing the child to take
along with him or her those objects which are familiar and thus
comforting.

The National Import Specialist for heading 4202, HTSUSA, notes that the
travel bag industry has long recognized that children between the ages
of three and six have a need for travel bags. A significant segment of
the industry is devoted to producing bags for children. Novelty bags
having animate and cartoon features are common articles in the industry.
The industry does utilize the United States Census data to determine its
marketing requirements. The census data published in the \"Education\"
section of the U.S. Bureaus of the Census, Statistical Abstract of the
United States, 114th Ed., 1994, at 160, reflects that over 50 percent of
the children in the United States, between the ages of three to six are
enrolled in primary school. The industry recognized that these children
require a bag in which to carry what ever personal belongings children
that age

require. Within the two carrying compartments a child can comfortably
carry pens, crayons, erasers, toy action figures, and similar objects.
It is our opinion that to conclude otherwise, that is, to say that the
Tasmanian Devil will simply be pulled along by the straps, as if on a
leash, and that a child would not use this mainly as a backpack, would
not be realistic.

The marketing material you submitted to us similarly is not conclusive
that the Tasmanian Devil will be used principally as a toy. The
packaging in which this item will be sold describes how a child can
\"Take Taz with you wherever you go\" and how a child can \"Transform me
from your Buddy to your Backpack\". At the top of one page it reads,
\"Transformable Backpack\", and on a second page a child is pictured
carrying the merchandise as a backpack, while another child has placed a
variety of objects, including a softball, in its mouth compartment. In
contrast to your assertion, we are of the opinion that the submitted
literature emphasizes the backpack function of the merchandise.
Marketing evidence in the trade additionally supports our opinion that
this type of merchandise is considered a backpack. In a manufacturer\'s
advertisement for a substantially similar article featured in the June
1995 issue of Fashion Trade Accessories, a bag trade publication, under
the title \"New Products and Sources\", it stated that Demarco
Enterprises had released a line of nylon and polyester backpacks
targeted at children 18 months to 15 years old which resembled stuffed
toys with felt and synthetic fur accents.

You state that the breakdown of the cost and weight of the materials
which comprise the \"creature\" element of the Tasmanian Devil are
greater than the cost and weight of the materials used for the backpack
components. Though this might be true, it does not escape our attention
that the backpack components, no matter their cost, have not only been
designed with durability in mind, but also facilitate the child\'s
ability to wear the Tasmanina Devil as a backpack. As per the EN to GRI
3(b), the essential character of a composite good is often determined by
the role of a constituent material in relation to the use of the good.
In the case of the Tasmanian Devil, the role played by the materials
used for the backpack components determine the essential character of
this merchandise. Customs has issued many rulings wherein combination
stuffed toy/backpacks were classified in heading 4202, HTSUSA. See HQ
081729, dated February 16, 1990, NY 850757, dated April 9, 1990; DD
809357, dated May 5, 1995; NY 810309, dated May 15, 1995; NY 810214,
dated June 5, 1995, and NY 811476, dated June 23, 1995.

It is the opinion of this office that the principal function of this
merchandise is as a backpack. Accordingly, the subject merchandise is
classifiable as a backpack in heading 4202, HTSUSA.

HOLDING:

The subject merchandise, referred to as the Tasmanian Devil, is properly
classifiable in subheading 4202.92.3020, HTSUSA, which provides for,
among other things, travel, sports and similar bags: with outer surface
of textile materials: other: other: of man-made fibers: backpacks.

The applicable rate of duty is 19.8 percent ad valorem and the quota
category is 670.

The designated textile and apparel category may be subdivided into
parts. If so, visa and quota requirements applicable to the subject
merchandise may be affected. Since part categories are the result of
international bilateral agreements which are subject to frequent
renegotiations and changes, to obtain the most current information
available, we suggest that your client check, close to the time of
shipment, the Status on Current Import Quotas (Restraint Levels) an
issuance of the U.S. Customs Service, which is updated weekly and is
available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint (quota/visa)
categories, your client should contact the local Customs office prior to
importing the merchandise to determine the current applicability of any
import restraints or requirements.

Sincerely,

John Durant, Director

Tariff Classification Appeals Division