Tariff Classification of Wrist Wrap Made in China; Modification of NY F87236

HQ 964324 July 12, 2000 CLA-2 RR:CR:TE 964324 mbg CATEGORY: Classification TARIFF NO.: 6307.90.9989 Mr. Michael K. Tomenga Neville, Peterson & Williams 1233 20th Street, N.W. Suite 500 Washington, D.C. 20036 RE: Tariff Classification of Wrist Wrap Made in China; Modification of NY F87236 Dear Mr. Tomenga: On June 15, 2000, Customs issued New York Ruling Letter (“NY”) F87236 to your firm, on behalf of your client, Simon Marketing, Inc., regarding the tariff classification of a child’s plush cat velcro( wrist wrap. The wrist wrap was originally classified as an other made up clothing accessory under subheading 6117.80.9540 of the Harmonized Tariff Schedule Annotated (“HTSUSA”). Upon review, Customs has determined that the NY ruling letter which was issued to you erroneously classified the subject merchandise. The correct classification for the product should be under subheading 6307.90.9989, HTSUSA, based on classification as an other made up article. The tariff classification for the wrist wrap in NY F87236 is hereby modified for the reasons set forth below, however, the tariff classification for the other merchandise in NY F87236 remains the same. Because NY F87236 has been in effect less than sixty days, the publication requirements of 19 U.S.C. 1625 are not applicable. FACTS: The Plush Cat Velcro( Wrap is composed of knit 100% man made fiber fabric. It features a textile cat head that is stuffed with polyester fibers and sewn onto a blue and white checked fabric strap with a hook and loop closure. The fabric strap measures approximately 7 inches in length and the cat’s head measured approximately 2 ½ inches long and 1 ¾ inches wide. The merchandise is manufactured for the McDonald’s( Corporation for use in the child’s Happy Meal( product and is intended to be worn by a child. It is our understanding that the merchandise has been detained on the West Coast because a visa was not presented, notices of redelivery have been issued for shipments that were released and that several inbond shipments will be arriving on the East Coast at the end of the week of July 10, 2000. ISSUE: What is the proper classification of the subject merchandise? LAW AND ANALYSIS: Classification under the HTSUSA 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs. Chapter 95, HTSUS, provides for, among other things, toys. Although the term “toy” is not defined in the tariff, the EN to chapter 95, HTSUS, state, in pertinent part, that “[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Although not set forth as a definition of “toys”, this term has been interpreted by Customs as equating “toys” with articles “designed for the amusement of children and adults.” You claim the subject merchandise is similar to other stuffed articles which have been classified in heading 9503, HTSUS. (See NY F82157, dated Feb. 17, 2000; NY D86371, dated Jan. 12, 1999; NY 815078, dated Oct. 4, 1995; DD 809335, dated May 10, 1995; DD 894609, dated Feb. 17, 1994; and NY 889474, dated Aug. 26, 1993.) In all of these aforementioned rulings, the merchandise contained some form of amusement in addition to the stuffed head of the article. For instance a rattle was inserted into the head which provided for a young child’s amusement or a watch was inserted under the animal head which served as the amusing aspect of the item. In the merchandise under consideration, Customs finds nothing which would provide for amusement for children. Although made of textile materials, the article is intended to be worn much like a bracelet and not to provide for amusement which would therefore preclude classification under heading 9503, HTSUS. The merchandise at issue is a decorative item worn on the wrist of a child that is similar to a piece of jewelry. Chapter 71, HTSUSA, provides for imitation jewelry, among other articles. However, Note 3(f) to Chapter 71 excludes from that chapter goods of Section XI (textiles and textile articles). The merchandise at issue, made wholly of textile material, is therefore excluded from Chapter 71. In NY F87236, the wrist wrap was originally classified as a clothing accessory in heading 6117, HTSUSA. Upon further review, Customs has determined that this classification was erroneous. While Customs has classified knitted textile bracelets in heading 6117, such classification rulings concerned merchandise which more closely resembled jewelry. (See HQ 962139, dated June 28, 1999; HQ 955385, dated April 13, 1994; NY C80969, dated Oct. 23, 1997; NY 813620, dated Aug. 28, 1995; and NY 858608, dated Dec. 18, 1990). In all of the aforementioned rulings the merchandise resembled jewelry but was precluded from classification in Chapter 71, HTSUS, due to the textile materials from which it was constructed. The term accessory is not defined in the tariff schedule or the Explanatory Notes. Webster's Third New International Dictionary, Unabridged (1986) defines accessory as "an object or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else.... any of various articles of apparel (as a scarf, belt, or piece of jewelry) that accent or otherwise complete one's costume." The three dimensional cat’s head which adorns the fabric of the subject merchandise is approximately 2 ½ inches long and 1 ¾ inches wide. The size of the cat’s head and the three dimensional aspect detract from any convenience or, subjectively, any beauty which may be derived from the merchandise if worn as jewelry. The wrist wrap does not resemble costume jewelry nor does it accessorize one’s “costume.” Based on the foregoing, we conclude that the merchandise at issue is not provided for in Heading 6117. Furthermore, heading 4202, HTSUSA, which provides for inter alia luggage and containers, has been utilized in the past for similar types of merchandise known as “wrist pouches.” (See e.g. HQ 088665, dated June 14, 1991; HQ 088452, dated May 5, 1991; and NY 857883, dated Dec. 23, 1990). These wrist pouches also consisted of a small stuffed animal-like head but were used to carry personal items on or about the person. Based on the utilitarian nature of the wrist pouches, classification of the wrist pouches was proper in heading 4202, HTSUS, however, the wrist wraps serve no similar utilitarian purpose as this product is not intended to carry any personal items. The animal-like features incorporated into the design of the wrist wrap are ornamental and do not lend themselves to either a functional purpose commensurate with heading 4202, HTSUS or an amusing purpose for heading 9503, HTSUS or an accessorizing purpose for heading 6117, HTSUS. Heading 6307, HTSUSA, provides for other made up articles of textile materials. This heading is a “basket provision” for goods which cannot be classified more specifically in the nomenclature. In the condition as imported and appearance the wrist wrap, specifically the stuffed “head” and the thin wrist band, resemble a pin cushion used for sewing purposes. The EN to 6307, HTSUSA provide eo nomine for the inclusion of pin cushions within this heading. As no other provision more specifically describes the submitted merchandise and considering the condition as imported, the wrist wrap is properly classified as other made up articles in subheading 6307.90.9989 HTSUSA. In the future, please be advised that 19 U.S.C. §1499 provides the appropriate method for expedited review of merchandise which has been detained or excluded. 19 U.S.C. §1499 directs Customs to exclude or release detained merchandise within thirty days after the merchandise has been presented for Customs examination and provides relief to the importer if Customs fails to act. 19 U.S.C. §1499 (c)(5)(A) states in relevant part: (A) The failure by the Customs Service to make a final determination with respect to the admissibility of detained merchandise within 30 days after the merchandise has been presented for customs examination, or such longer period if specifically authorized by law, shall be treated as a decision of the Customs Service to exclude the merchandise for purposes of section 1514(a)(4) of this title. See also 19 C.F.R. §151.16(f). 19 C.F.R. §151.16 provides that such a deemed exclusion may be the subject of a protest and directs Customs to decide the protest within 30 days. 19 U.S.C. §1499(c)(5)(B) governs the effect of Customs’ failure to make a decision on a protest within thirty days and states in relevant part: (B) For the purposes of section 1581 of Title 28, a protest against the decision to exclude the merchandise which has not been allowed or denied in whole or in part before the 30th day after the day on which the protest was filed shall be treated as having been denied on such 30th day. See also 19 C.F.R. §151.16(g). Lastly, the Customs regulations promulgated pursuant to 19 U.S.C. §1499 provide an importer with a method for obtaining expedited judicial review. 19 C.F.R. §174.31(c) states that an importer may file an action in the Court of International Trade within 180 days after: (C) [t]he date that a protest is deemed denied in accordance with 174.21(b), or §151.16(g) of this chapter. It is Congress’ belief that the timeframes set forth in the statute provide the kind of relief necessary for detention and exclusion issues. HOLDING: NY F87236 is hereby modified. The wrist wrap is properly classified under subheading 6307.90.9989, HTSUSA, which provides for “Other made up clothing articles, including dress patterns: Other: Other: Other: Other.” The wrist wrap is dutiable at the general column one rate of 7 percent ad valorem. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division