CLA-2 CO:R:C:T 950708 CRS
Mr. Sam I. Isaacson
Chairman of the Board
The Gem Group, Inc.
20 Locust Street
Danvers, MA 01923
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 086094 and HRL
086676 revoked; HRL 088562.
Dear Mr. Isaacson:
This office has had occasion to review Headquarters Ruling
Letter (HRL) 086094 dated March 16, 1990, 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 086094 consisted of five
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 tote bags did not have inside or outside pockets nor were
they lined or reinforced. Style numbers 103 and 128 had snap
closures; the remainder had open tops. HRL 086094 held that the
tote bags described above were classifiable in subheading
4202.22.8030, HTSUSA. This classification was subsequently
modified in HRL 086676 dated March 21, 1990, to subheading
4202.22.4500, 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.
In HRL 086094 we stated that tote bags "function primarily
as secondary handbags used to carry various objects which do not
fit into a woman's regular 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 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 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.
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), 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
086094 and HRL 086676 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
086094 and HRL 086676 under 19 CFR 177.9(d)(1). It is not to be
applied retroactively to HRL 086094 and HRL 086676 (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 086094 and HRL 086676 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