CLA-2 RR:CR:TE 960830 SG
TARIFF NO: 6307.90.9989
Nicholas D. Defonte
N.J. Defonte Co. Customs Brokers, Inc.
225 Broadway
New York, N.Y. 10007
RE: Classification of liquor-wine bottle bag; drawstring
closure, decorative covering, heading 4202, HTSUS
Dear Mr. Defonte:
This is in response to your letter, dated December 6, 1996,
on behalf of your client, P&R Imports, regarding the
classification of a textile liquor bottle bag with a cord closure
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). We regret the delay in responding to your
inquiry. A sample was submitted to this office for examination.
FACTS:
The submitted sample consists of a textile bag or sack with
a drawstring cord closure, constructed of two layers of nylon
filament plain woven fabric which has been cut into panels and
assembled by sewing into a bag. The exterior surface of the bag
has been covered with nylon textile flock and the name "Sheridan"
has been embroidered onto the side of the bag. The top of the
bag has been decorated by sewing a strip of white faux fur
completely around the circumference of the bag. The mouth of the
bag has been reinforced by sewing a strip of cellular plastic
inside the upper 1 « inches of the bag and in so doing a tunnel
band is created at the top of the bag. This cellular plastic
strip has been reinforced by having been laminated to a knit
supporting fabric. A braided cord, in part of metalized yarn,
has been inserted into the top inch of the bag to facilitate its
closure. This drawstring allows the bottle bag to be tightened
around the neck of the bottle. The bag has no internal or
external pockets or special fittings. Although it is capable of
holding a number of articles. This bag is of a shape which can
accommodate a liquor or wine bottle.
We are advised that the bag will be used as a gift sack in
which a liquor bottle will be placed for retail sales.
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ISSUE:
Whether the drawstring bag is properly classified in heading
4202, HTSUS, or in heading 6307, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). 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 GRI 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 HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Drawstring pouches of textile materials have been classified
in both headings 4202 and 6307, HTSUS, depending upon their
construction and the purpose(s) for which they are designed.
Pouches classified outside of heading 4202, HTSUS, are generally
ones that are not similar to the named articles of the heading
and not adequately constructed to sustain repeated use.
Heading 4202, HTSUS, provides for "Trunks, suitcases, vanity
cases...spectacle cases, binocular cases, camera cases, musical
instrument cases, gun cases, holsters and similar containers;
traveling bags...wallets, purses, map cases, cigarette cases,
tobacco pouches...bottle cases, jewelry boxes...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."
The EN to heading 4202 suggest that the expression "similar
containers" in the first part of the heading includes hat boxes,
camera accessory cases, cartridge pouches, sheaths for hunting or
camping knives, portable tool boxes or cases, specially shaped or
internally fitted to contain particular tools with or without
their accessories, etc. With regard to the second part of
heading 4202, the EN indicate that the expression "similar
containers" includes note-cases, writing-cases, pen-cases,
ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases,
tool and jewellery rolls, shoe-cases, brush-cases, etc.
In Totes, Incorporated v. United States, 18 C.I.T. 919, 865
F. Supp. 867 (1994), aff'd, 14 Fed. Cir. (T) ___, 69 F.3d 495
(1995), the Court of International Trade held that the essential
characteristics and purposes of the heading 4202 exemplars are to
organize, store, protect and carry various items. With respect
to the broad reach of the residual provision for "similar
containers" in heading 4202, the Court found that the rule
requires only that the imported
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merchandise possess the essential character or purpose running
through all of the enumerated exemplars.
The subject merchandise is designed to comfortably fit over
most wine bottles and the cord, in the closed position, is
strategically located at the neck of the bottle to allow the bag
to be closed with ease. The faux fur at the top of the bag,
although highly decorative, appears to provide some cushion of
protection for the neck of the wine bottle. However, despite the
bag's outer surface flocking, the constituent fabrics of the bag
itself do not appear to provide any cushion of protection for the
wine bottle in the event of any sudden blows to the bottle
encased therein. The construction and appearance of the bag as a
whole appears to ensure that it will be used as a decorative
rather than a protective packing for the bottle it will
transport.
We note that "bottle cases" are specifically enumerated in
heading 4202, HTSUS. The subject bag is not a "case" as it does
not share the fundamental characteristics attributable to cases,
that is, as it relates to both storage and protection. The lack
of these properties preclude the subject merchandise from
classification under heading 4202, HTSUS.
Heading 6307, HTSUS, provides for other textile articles not
more specifically provided for elsewhere in the tariff schedule.
The EN to heading 6307, at page 949, states in pertinent part
that the provision includes:
(5) Domestic laundry or shoe bags, stocking, handkerchief
or slipper sachets, pajama or
nightdress cases and similar articles.
(6) Garment bags (portable wardrobes) other than those of
heading 42.02.
In addition, the EN to heading 6307, at page 950, state that
the heading excludes "travel goods (suit-cases, rucksacks, etc.),
shopping-bags, toilet-cases, etc., and all similar containers of
heading 42.02." It should be noted that articles such as laundry
or shoe bags may take the form of a drawstring bag or pouch.
The foregoing indicates that travel containers of heading
4202, HTSUS, are excluded from heading 6307. Moreover, the
exemplars cited as examples of bags classifiable within heading
6307 suggest that certain storage bags are excluded from heading
4202. In practice, the distinction between travel and storage
bags is often difficult to apply. For example, garment bags,
shoe bags and similar bags may be principally used for either
storage or travel depending upon their construction or design.
Furthermore, heading 4202 is not limited to containers used for
travel purposes. For example, jewelry boxes are classifiable
under heading 4202, despite the fact that they are principally
used to store and/or display their contents. Other containers of
heading
4202, including cutlery cases, cigarette cases and similar cases,
may principally be used for storage purposes, depending upon
their construction.
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In marginal circumstances, we regard the substantiality of
the container as a pertinent consideration. Substantial
containers are more likely to be used for carrying purposes and
are better able to protect their contents. The term
"substantial" in this context refers not only to the material
composition of the article, but also to whether it has been
designed for repetitive use. Thus, lined jewelry pouches
constructed of quality materials have been classified in heading
4202 as they were suitable for use during travel. See
Headquarters Ruling Letter (HQ) 950000, dated October 31, 1991.
In addition, the EN to heading 4202 excludes certain
containers which are not specially shaped or fitted. For
example, jewelry boxes of a kind sold at retail with their
contents are classified in the heading only if they are specially
shaped or fitted to hold their contents and suitable for
long-term use. We regard this requirement as a relevant
consideration when classifying merchandise at the periphery of
the heading. Containers which are specially shaped or fitted are
better suited for organizing and storing merchandise. Thus,
jewelry pouches have been excluded from heading 4202 when of an
insubstantial nature and not specially fitted to hold jewelry.
See HQ 953176, dated March 16, 1993.
In this instance, the bag is insubstantial in the sense that
it is not designed for travel or to store or protect its
contents. While the bag is capable of re-use, it appears to be
designed principally as an alternative for gift wrapping and
functions as an attractive means for presenting its contents.
Moreover, while the bag is of a size suitable for presenting a
liquor or wine bottle and will be used for this purpose, it is
not regarded as specially shaped or fitted. The bag does not
feature internal fittings to accommodate a bottle. In addition,
it is not shaped to the form of its contents and is capable of
holding bottles of various dimensions, as well as any number of
smaller items. We note that although there is no requirment that
bags or similiar containers of the second part of heading 4202 be
specially shaped or fitted, it is indicative of a 4202
classification rather than a classification in 6307. In HQ
956234, dated November 14, 1994, we classified similar
merchandise in heading 6307, HTSUS. Therefore, based on the
foregoing, we conclude that the drawstring bag is excluded from
heading 4202, HTSUS, and is properly classified in heading 6307,
HTSUS.
HOLDING:
The subject merchandise is classifiable under subheading
6307.90.9989, HTSUS, which provides for other made up articles,
including dress patterns: other: other: other: other: other.
The applicable rate of duty is 7 percent ad valorem.
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 negotiations and
changes, we suggest that your client check, close to the time of
shipment, the Status Report 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.
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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 status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division