CLA-2 CO:R:C:T 950709 CRS
Kevin J. Downey, Esq.
Sullivan & Lynch
156 State Street
Boston, MA 02109
RE: Cotton tote bags; handbags; travel, sports and similar bags;
Additional U.S. Note 1, Chapter 42; J.E. Mamiye & Sons v. United
States; Adolco Trading Co. v. United States; HRL 086938 revoked;
HRL 088562.
Dear Mr. Downey:
This office has had occasion to review Headquarters Ruling
Letter (HRL) 086938 of August 20, 1990, issued to you on behalf
of The Gem Group, Inc., concerning the tariff classification of
cotton tote bags under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). Our decision follows below.
FACTS:
The merchandise at issue in HRL 086938 consisted of four
tote bags with the following approximate dimensions:
(1) Style No. 100 -- 12" x 14" x 4"
(2) Style No. 102 -- 15-1/2" x 14" (no gusset)
(3) Style No. 108 -- 13-1/2" x 12" x 4-1/2
(4) Style No. 118 -- 11-1/2" x 13-1/2" x 4-1/2"
The bags did not have inside or outside pockets nor were they
lined or reinforced. None of the bags had any form of closure.
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.
In HRL 086938 we stated that the tote bags at issue were
"used as secondary handbags used to carry various personal
effects that do not ordinarily fit into a woman's handbag."
Since the tote bags in question were deemed similar in function
to handbags, it was Customs' view that they were classifiable in
subheading 4202.22.
HRL 086938 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 Tariff Schedules of the United States
Annotated 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.
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), tote bags were
described 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 tote bags at issue are made from cotton canvas and are
often printed with company logos, or promotional or advertising
information. Styles 103 and 128 have single snap closures; the
rest have no means of closure. The bags have no pockets and are
not lined or reinforced. Since they are of relatively coarse
construction, carry advertising and provide little protection for
the items they may contain, it is unlikely that the tote bags in
question are used in a manner similar to a women's handbag.
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.
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, Customs considers them to be
travel, sports and similar bags within the meaning of Additional
U.S. Note 1, Chapter 42, HTSUSA. HRL 088562 dated December 5,
1991.
HOLDING:
The 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.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are revoking HRL
086938 to reflect the above classification effective with the
date of this letter. However, if, after your review you disagree
with the legal basis for our decision, we invite you to submit
any arguments you might have with respect to this matter for our
review. Any submission you wish to make should be received
within thirty days of the date of this letter.
This notice to you should be considered a revocation of HRL
086938 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to HRL 086938 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type, HRL
086938 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.
However, please be advised that in some instances involving
import restraints, such relief may require separate approvals
from other government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division