CLA-2 CO:R:C:T 088562 CRS
Mr. Robert K. Ermatinger
Executive Vice President
Luggage and Leather Goods
Manufacturers of America, Inc.
350 Fifth Avenue
Suite 2624
New York, NY 10018
RE: Cotton tote bags; handbags; travel, sports and similar bags;
Additional U.S. Note 1, Chapter 42, HTSUSA; J.E. Mamiye & Sons v.
United States; Adolco Trading Co. v. United States; HRL 086094;
HRL 086938.
Dear Mr. Ermatinger:
This is in reply to your letter dated February 20, 1991, to
the Commissioner of Customs, in which you requested that Customs
reconsider the classification of tote bags under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA). You
specifically asked that we reconsider Headquarters Ruling Letter
(HRL) 086094 dated March 16, 1990, and HRL 086938 dated August
20, 1990. Sample tote bags were not submitted; instead, excerpts
from the 1986 High Sierra catalogue that portray various types of
canvas bags were provided. Some of the bags portrayed therein
are similar to the merchandise described below; others are quite
different. The scope of this ruling, however, is confined to the
articles described below.
FACTS:
The merchandise in question in HRL 086094 consisted of five
styles of cotton canvas tote bags with the following approximate
dimensions:
(1) Style No. 103 -- 13" x 10-3/4" x 5"
(2) Style No. 120 -- 15" x 10-1/2" x 4-3/4"
(3) Style No. 124 -- 14-1/2" x 13-1/2" (no gusset)
(4) Style No. 127 -- 12" x 15" x 4-1/2"
(5) Style No. 128 -- 12" x 16-1/2" x 5"
The bags listed above were not lined or reinforced nor did they
have inside or outside pockets. Style nos. 103 and 128 had snap
closures; the remainder had open tops.
At issue in HRL 086938 were four styles of cotton tote bags
with the following approximate dimensions:
(1) Style 100 -- 12" x 14" x 4"
(2) Style 102 -- 15-1/2" x 14" (no gusset)
(3) Style 108 -- 13-1/2" x 12" x 4-1/2"
(4) Style 118 -- 11-1/2" x 13-1/2" x 4-1/2"
The bags of HRL 086938 were not lined or reinforced, nor did they
have pockets or snap closures.
In HRL 086094 and HRL 086938, the tote bags described above
were held to be similar to handbags. However, in your letter of
February 20th you maintain that tote bags should be classified
under a residual provision for travel, sports and similar bags.
Furthermore, with regard to the future classification of tote
bags, you urge that Customs strictly apply the Guidelines for
Determining the Scope of the Luggage Provisions of the Tariff
Schedules (Guidelines). See HRL 073827 dated May 3, 1984. The
Guidelines were issued under the Tariff Schedules of the United
States Annotated (TSUSA), the predecessor of the HTSUSA.
ISSUE:
The issue presented is whether the tote bags in question are
classifiable as handbags, or, pursuant to Additional U.S. Note 1,
Chapter 42, HTSUSA, under a residual provision for travel, sports
and similar bags.
LAW AND ANALYSIS:
The relevant heading in this case is heading 4202, HTSUSA,
which provides, inter alia, for trunks, suitcases, vanity cases,
attache cases, briefcases...and similar containers; traveling
bags...handbags...sports bags...and similar containers
of...textile materials.... Within heading 4202, the pertinent
subheadings are subheading 4202.22, HTSUSA, which provides for
handbags, whether or not with shoulder strap, including those
without handle, with outer surface of plastic sheeting or of
textile material; and subheading 4202.92, HTSUSA, which provides
for other (articles of heading 4202) with outer surface of
plastic sheeting or of textile material. The residual provision
of subheading 4202.92, is further broken down at the U.S. level
(eight digits) into provisions for travel, sports and similar
bags, and for musical instrument cases, and a further residual
provision for other containers. While the cotton canvas tote
bags of HRLs 086094 and 086938 were classified as handbags, you
contend that this classification was incorrect, and that tote
bags similar to those described above should be classified under
the residual provision for travel, sports and similar bags.
The scope of the provision for travel, sports and similar
bags is defined by Additional U.S. Note 1, Chapter 42, HTSUSA, as
follows:
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 used 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.
U.S. Note 1 therefore explicitly provides that in order for an
article to be classified as a travel, sports and similar bag it
must be something other than the type of article falling in
subheadings 4201.11 through 4202.39. Thus before the tote bags
in question can be classified under a residual subheading, they
must first be excluded from the pertinent specific subheadings,
in this instance, the provision for handbags. The U.S. Note
merely reinforces the legal requirements of General Rules of
Interpretation 1 and 6.
In HRL 086094 (See also HRL 086676 dated March 21, 1990), we
stated in relevant part:
The subject tote bags function primarily as secondary
handbags used to carry various objects which do not fit
into a woman's regular handbag.
As the tote bags in question were deemed similar in function to
handbags, it was Customs' view that they were classifiable in
subheading 4202.22 pursuant to GRI 6.
HRL 086094 followed the rationale of J.E. Mamiye & Sons,
Inc. v. U.S., 509 F. Supp. 1268 (1980), aff'd, 665 F.2d 336
(1981), in which the court addressed the issue of whether tote
bags, which varied in size, color and material, were properly
classifiable under the TSUSA in a specific provision for handbags
or as shopping bags under a provision for textile articles not
specially provided for. The court noted that tote bags are used
to carry items which do not ordinarily fit within a women's
handbag and, on this basis, held that they were similar to
handbags. In so holding, the court stated in relevant part:
The primary issue presented is whether the
imported tote bags are handbags as claimed or whether
they are excluded from classification under item
706.24, supra, by virtue of being shopping bags in
accordance with Headnote 2(b) of Schedule 7, Part 1,
Subpart D....As indicated, supra, the provision for
handbags is an eo nomine provision....Ordinarily, use
is not a criteria in determining whether merchandise is
embraced within an eo nomine provision. However, use
may be considered in determining the identity of an eo
nomine designation....
Following this principle the record establishes
that the involved tote bags are utilized by women as
second handbags to carry items which do not ordinarily
fit within a handbag....Accordingly, it is apparent
that, while a tote bag may be used to carry purchases,
nine of the eighteen witnesses who testified indicated
it is used for the convenience of those items which do
not fit within a handbag. Such testimony is
sufficient to establish the use of a tote bag to be
similar to a handbag....
Id. at 1274.
Nevertheless, you have argued that the Guidelines should
govern all future classification rulings on tote bags. The
Guidelines were issued to supplement the definition of luggage in
Schedule 7, Part 1, Subpart D, Headnote 2, TSUSA; consequently,
they are of limited value for the purposes of classification
under the HTSUSA. In no circumstances will they be used for more
than guidance purposes. Where the Guidelines are ambiguous, it
is Customs' view that the use of the article should be considered
in order to determine whether a particular article comes within
the terms of subheading 4202.22. Id. at 1274.
The canvas tote bags in question may in some circumstances
be used by women as secondary handbags, that is, to carry items
which do not ordinarily fit within a handbag. However, cotton
tote bags similar to those at issue are used for a variety of
purposes. In Adolco Trading Co. v. United States, 71 Cust. Ct.
145, C.D. 4487 (1973), witnesses described tote bags in broad
terms.
[T]he term "tote is a general one used to indicate all
types of carry bags, regardless of whether they are
used for shopping or travel....
....
...[T]he word "tote" is a general term used by
many manufacturers to refer to carry bags....
Id. at 151-152. The court concluded that:
The evidence establishes that...the term tote or tote
bag is used in the trade to cover various types of
carry bags, including shopping bags, and bags which may
be luggage...and others which may be handbags....Thus
the fact that an article may be bought, sold or
referred to as a tote or tote bag does not establish
that it is a handbag....
Id. at 155.
The instant tote bags are made from cotton canvas and are
often printed with company logos, or promotional or advertising
information. They have no means of closure, no pockets and are
not lined or reinforced. Since they are of relatively coarse
construction, carry advertising and provide little protection for
whatever items they may contain, it is unlikely that the tote
bags in question are used in a manner similar to a women's
handbag. Instead, it is Customs' opinion that canvas tote bags
similar to those at issue are used as multipurpose bags to carry
any number of sundry articles, such as food, books and/or
clothing. Since they do not fit the terms of subheadings 4202.11
through 4202.39, and since they are a type of bag used to carry
clothing and other personal effects during travel, they meet the
definition of travel, sports and similar bags of Additional U.S.
Note 1, Chapter 42, HTSUSA, and are therefore classifiable
accordingly.
HOLDING:
The cotton tote bags at issue are classifiable in subheading
4202.92.1500, HTSUSA, under the provision for trunks...shopping
bags...and similar articles...: other: with outer surface of
plastic sheeting 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
cotton. They are dutiable at the rate of 7.2 percent ad valorem
and are subject to textile category 369.
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 you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your 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, 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