Reconsideration of NY N304994; tariff classification of a textile backpack with a drawstring closing

HQ H307211 August 18, 2020 OT:RR:CTF:CPMM H307211 KSG Susan M. C. Kovarovics Bryan Cave Leighton Paisner LLP 1155 F Street, NW Washington, D.C. 20004 RE: Reconsideration of NY N304994; tariff classification of a textile backpack with a drawstring closing Dear Ms. Kovarovics: This is in response to your request for reconsideration of New York Ruling Letter (NY) N304994 submitted on behalf of Build-A-Bear Workshop, Inc., regarding the tariff classification of a textile backpack with a drawstring closing in the Harmonized Tariff Schedule of the United States (HTSUS). In NY N304994, dated July 22, 2019, CBP classified an article described as a child’s drawstring backpack constructed with an outer surface of 100 percent man-made textile material featuring two small slits on the upper area of the side seams in subheading 4202.92.3120, HTSUS. Subheading 4202.92.31.20 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 plastics or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Of vegetable fibers and not of pile or tufted construction: Of man-made fibers: Backpacks." Chapter Note 2(l), of Chapter 42, HTSUS, excludes articles of chapter 95 (for example, toys, games, sports equipment) from Chapter 42. Chapter note 1(d), of Chapter 95, HTSUS, excludes containers of heading 4202 from Chapter 95. Additional U.S. Note 1, Chapter 95, HTSUS provides that 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 The Court of International Trade (CIT) stated in Rubies Costume Co. v. United States, 279 F. Supp. 3d 1145 (Ct. Intl' Trade 2017), aff'd, 922 F.3d 1337 (Fed. Cir. 2019), that "the HTSUS is designed so that most classification questions can be answered by GRI 1." The Explanatory Note ("EN") for Rule 1 states at (IV) that “[P]rovision (III) (a) is selfevident, and many goods are classified in the Nomenclature without recourse to any further consideration of the Interpretative Rules (e.g., live horses (heading 01.01), pharmaceutical goods specified in Note 4 to Chapter 30 (heading 30.06)).” The EN for GRI 3, EN (I) provides as follows: This Rule provides three methods of classifying goods which, prima facie, fall under two or more headings, …These methods operate in the order in which they are set out in the Rule. Thus Rule 3(b) operates only if Rule 3(a) fails in classification,…. In Rubies, the CIT set forth an approach to reconcile exclusionary notes of varying specificity. In Rubies, the chapter 95 note was more specific than the section XI Note (which includes chapter 61), which broadly excluded all chapter 95 articles. The Court stated that the broad exclusion to chapter 95 operated to eliminate their possible classification as festive articles in chapter 95, HTSUS. In the instant case, like in Rubies, the exclusionary notes at issue are not equal in specificity. Note 1(d), chapter 95, HTSUS, excludes sports bags and other containers of chapter 42. Note 2(l), chapter 42, HTSUS, excludes articles of chapter 95. In accordance with Rubies, the exclusionary note in chapter 95 is more specific. Therefore, the articles in this case could not be classified in chapter 95, HTSUS. Heading 4202 describing backpacks of textile materials is more descriptive of the article being classified than the toys provision of heading 9503. The article has a functional storage area in which to transport items, has drawstring straps that close the bag and allow the bag to be carried as a backpack, and is durable and large enough to carry the trinkets of a child. The two small slits at the top of the bag would not significantly affect the utilitarian function of the bag with regard to carrying, protecting, organizing, and storing the small items of a child. While the article can be used to carry a stuffed teddy bear, it can also be used to transport other personal effects. Counsel argues that the article should be classified in heading 9503, HTSUS, as a toy primarily used for amusement. Counsel concedes that a toy that is actually and primarily a functional bag or other container must be classified in heading 4202. We find that the exclusion applies here because the item allows children to carry a teddy bear and other articles on their back. It is a functional backpack designed for a child's use. Therefore, we affirm NY N304994. Sincerely, for Craig T. Clark, Director Commercial and Trade Facilitation Division cc: NIS Vikki Lazaro, NCSD NIS Roseanne Murphy, NCSD