CLA-2 CO:R:C:T 955660 NLP
Mr. Peter J. Allen
Neville, Peterson & Williams
80 Broad Street- Suite 3400
New York, NY 10004
RE: NYRLs 892433, 870762, 884087, 874907 headings 3923, 3926 and
4202; Legal Note 2(h) to Chapter 39; Additional U.S. Note 1
to Chapter 42; Legal Note 2(a) to Chapter 42; Explanatory
Notes to heading 4202; travel, sports and similar bags; HRLs
087419, 954965, 954970, 085526, 082218, 082609, 087026 and
085769
Dear Mr. Allen:
On November 30, 1993, our New York office issued to you, on
behalf of your client, Dolly, Inc., ("Dolly") New York Ruling
Letter (NYRL) 892433, which classified a "Diaper bag" in subheading
4202.92.4500, Harmonized Tariff Schedule of the United States
(HTSUS). In a letter to Customs Headquarters, dated December 20,
1993, you requested, on behalf of Dolly, a reconsideration of this
ruling. In addition, on July 13, 1994, you met with my staff
attorneys to discuss your position concerning the classification
of the "Diaper bag". You have also provided us with three samples
of this bag.
FACTS:
The article at issue is called a "dirty diaper bag". You
informed us in your submission and again in the meeting that was
held on July 13, 1994, that the sample described in NYRL 892433 is
not identical in all respects to the merchandise that will be
imported. The bag in NYRL 892433 had a zipper closure, while the
article, in its condition of importation, will not have a zipper
closure. As a result, we will reconsider NYRL 892433 as it
pertains to the bag with a zipper closure and we will also provide
you with a classification of the bags in the condition that Dolly
intends to import them in.
The diaper bags at issue are flat, vinyl, pouch-like bags.
The first sample has a metal zipper opening and measures
approximately 7 inches by 10 inches. The second and third samples,
which measure 8 inches by 10 inches, will each have a vinyl flap
that extends from the top of the bag and overlaps the opening.
This flap will be sewn along the edges but will have no other means
of closure. The sides of the bags are made of clear vinyl (PVC)
sheeting and the bags contain no gussets. The edges have been
closed by means of stitched plastic piping. The first and second
samples each have a sewn-on loop for attachment to the main
changing bag, while the third bag does not feature a loop.
While the subject articles will be imported separately, they
will be sold with a diaper changing bag. Used together, the diaper
changing bag and the dirty diaper bag will permit persons traveling
with a baby to transport the necessary changing supplies while
segregating the soiled diapers from the rest of the contents of the
changing bag. The articles at issue are intended for use in
transporting soiled diapers.
In addition to the subject dirty diaper bags, you submitted
a diaper changing set consisting of the outer carrying bag, a
bottom stiffener insert and a changing pad. The set was submitted
to illustrate the manner in which the bags with the loops are
attached to the outer changing bag. A strap attached to the inside
of the changing bag permits the dirty diaper bag to be secured
within the changing bag and permits it to be located and removed
easily by grasping the strap. It also permits the user to remove
the other contents of the changing bag without the need of holding
the dirty diaper bag apart.
NYRL 892433 classified the dirty diaper bag with a zipper
closure in subheading 4202.92.4500, HTSUS, which provides for the
following "[t]runks, suitcases...; traveling bags, toiletry bags,
knapsacks and backpacks, handbags...and similar container,...of
sheeting of plastics: [o]ther: [w]ith outer surface of sheeting of
plastic or of textile materials: [t]ravel, sports and similar bags:
[o]ther." It is your position that the bags at issue are
classifiable in subheading 3923.29.0000, HTSUS, which provides for
"[a]rticles for the conveyance or packing of goods, of plastics;
stoppers, lids, caps and other closures, of plastics: [s]acks and
bags (including cones): [o]f other plastics." In the alternative,
you argue that the pouches are classifiable in subheading
3926.90.9090, HTSUS, which provides for "[o]ther articles of
plastics and articles of other materials of headings 3901 to 3914:
[o]ther: [o]ther: [o]ther."
ISSUE:
Is the "dirty diaper bag" classifiable as a travel, sports
and similar bag in subheading 4202.92.4500, HTSUS, or as a sack or
bag in subheading 3923.29.0000, HTSUS, or as an other article of
plastics in subheading 3926.90.9090, HTSUS?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings 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's may be applied, taken in
order.
Heading 3923, HTSUS, provides for "[a]rticles for the
conveyance or packing of goods, of plastics;...." Legal Note 2(h)
to Chapter 39, HTSUS, precludes from classification therein
"...trunks, suitcases, handbags or other containers of heading
4202." Accordingly, our first determination is whether the dirty
diaper bags are classifiable under heading 4202, HTSUS, and if they
are items classifiable in heading 4202, HTSUS, then they are
precluded from classification in Chapter 39, HTSUS.
Heading 4202, HTSUS, provides for the following:
Trunks, suitcases, vanity cases, attache cases,
briefcases, school satchels, spectacle cases, binocular
cases, camera cases, musical instrument cases, gun cases,
holsters and similar containers; traveling bags, toiletry
bags, knapsacks and backpacks, handbags, shopping bags,
wallets, purses, map cases, cigarette cases, tobacco
pouches, tool bags, sports bags, bottle cases, jewelry
boxes, powder cases, cutlery cases 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.
Additional U.S. Note 1 to Chapter 42, HTSUS, states:
For purposes of heading 4202, the expression 'travel, sports
and similar bags' means goods... of a kind designed for
carrying clothing and other personal effects during travel,
including backpacks and shopping bags of this heading...
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs) to heading 4202 state, on page 613, that
this heading does not cover "[a]rticles which, although they may
have the character of containers, are not similar to those
enumerated in the heading..."
The articles at issue are bags designed to transport "personal
effects" (i.e., dirty diapers and, given the size of the bags,
other toiletry or hygiene articles) "during travel" (i.e., from one
location to another). Essentially, the purpose of the bags is to
organize, protect and transport these effects. The cases will be
used inside of another container, for example, the diaper changing
bag. We note that as there is no qualification of the term "during
travel", this office will not place limits on the duration or
distance of any journey in order for it to constitute travel within
the purview of the U.S. Note set forth above. Travel may
constitute relatively minor journeys such as commutes to work or
lengthier trips of greater duration.
As the bags are designed to transport personal effects during
travel, it is our position that they are all classifiable as
travel, sports or similar bags in subheading 4202.92.4500, HTSUS.
See, HRL 087419, dated July 12, 1990, wherein Customs recognized
that travel bags are articles designed to aid in organizing and
providing a convenient carrying case for an individual.
In addition, we note that the subject articles are similar to
cosmetic cases, which we have classified as travel, sports and
similar bags. For example, in HRL 954965, dated September 20,
1993, we classified cosmetic cases made of plastic sheeting as
travel bags as they were designed to transport personal effects.
We stated that, given their function, these cases were more
specifically described as travel bags than as articles designed to
be carried in the handbag. See also, HRL 954970, dated September
20, 1993, wherein we classified a bag made of plastic sheeting that
was used to hold rechargeable Remington electric shavers, with a
secondary usage being for cosmetics, in subheading 4202.92.4500,
HTSUS.
Furthermore, there is no prerequisite that containers of
heading 4202, HTSUS, must be specially fitted to accommodate a
particular object, nor need they necessarily possess handles or
straps, nor must they be constructed with rigid exteriors.
Therefore, the fact that the subject bags do not have gussets or
carrying handles does not preclude them from classification as
travel, sports or similar bags. See, HRL 952700, dated December
23, 1992. We also note that even though two of these bags do not
have either a zipper closure or a slide fastener closure, this also
does not preclude their classification in heading 4202, HTSUS. It
is our position that the flap closure will ensure that the items
won't fall out and it will be sufficient to enclose the items the
bags are meant to transport. Thus, as we find that the bags are
classifiable as travel, sports and similar bags in heading 4202,
HTSUS, they cannot be classified under either heading 3923, HTSUS,
or heading 3926, HTSUS, by reason of Legal Note 2(h) to Chapter 39,
HTSUS.
However, it is your position that the subject bags are not
classifiable in heading 4202, HTSUS, and are more appropriately
provided for in heading 3923, HTSUS. First, the items are composed
of plastics, as PVC sheeting comprises practically the entire
surface area of the bags and provides their visual effect. Second,
the bags are intended for use in conveying other articles. Their
purpose is to carry soiled diapers inside the diaper changing bag
and, at the same time, they segregate the soiled diapers from the
other contents in the diaper changing bag. The vinyl sheeting of
the bags provides a moisture-proof barrier to protect the inside
of the changing bag. In support of this position, you cite the ENs
to heading 3923, which state that plastic bags are included within
the merchandise covered by this heading. In addition, you cite HRL
082218, dated February 27, 1990, and HRL 082660, dated February 23,
1990, in which Customs classified plastic bags used for hospital
patients in heading 3923, HTSUS. You also note HRL 085526, dated
December 21, 1989, and NYRL 884087, dated April 7, 1993, which
classified pencil pouches made of plastic sheeting in heading 3923,
HTSUS.
In HRL 082218, certain polyethylene plastic bags used by
hospitals to store the personal belongings of patients were
classified in heading 3923, HTSUS. We concluded in this decision
that the bags "could not be reused" and they were not of the type
of bag contemplated by heading 4202, HTSUS, by virtue of Note 2(a)
to Chapter 42, HTSUS, which states that heading 4202 does not cover
"bags made of sheeting of plastics, whether or not printed, with
handles, not designed for prolonged use (heading 3923)." The bags
in HRL 082660 served the same function as the bag in HRL 082218 and
could also be used as refuse bags, which are provided for in the
ENs to heading 3923, HTSUS.
By implication, bags composed of plastic sheeting which are
designed for prolonged use may be classified in heading 4202,
HTSUS. In the instant case we are of the opinion that the subject
bags have been designed for repetitive use. The plastic material
is reinforced on each side with stitched plastic piping and appears
thick enough to resist rips and tears. These bags are more
substantial than the patient bags described above. As stated
above, they are similar to travel and cosmetic bags and, therefore,
are the type of bag to be classifiable in heading 4202, HTSUS.
In HRL 085526 we dealt with the classification of two styles
of pencil cases made of plastic sheeting. The first measured
approximately 9-1/2 inches by 6 inches with no gusset and had an
interlocking Ziplock-type closure. The second style measured
approximately 11 inches by 6-1/2 inches with no gusset and it had
a flap and metal closure. Both styles had a series of stamped
holes which could be punched out to allow placement onto rings of
a looseleaf binder and both were intended to contain various school
supplies. We held that these notebook pouches of plastic which
were designed to hold school supplies and to facilitate their
conveyance between various locations were classifiable in
subheading 3923.29.0000, HTSUS. See also, NYRL 884087, dated April
7, 1993.
In arriving at this classification, Customs considered the
applicability of subheading 4202.32, HTSUS, and noted that in a
prior ruling, HRL 085356 dated November 20, 1989, pencil pouches
were classified in heading 4202, HTSUS, as their size and generic
characteristic strongly suggested they were to be carried in a
handbag. However, the pencil cases in HRL 085526 were designed
to be carried inside a looseleaf binder, not a pocket or handbag,
and this was evidenced by the presence of stamped/punch out holes
strategically located to accommodate looseleaf binder rings.
Additionally, the pouches were considered too large to be placed
in a pocket or handbag. Therefore, we held that these pouches were
more specifically classifiable in subheading 3923.20.0000, HTSUS.
Furthermore, we note that other pencil pouches that served
similar functions to those classified in HRL 085526, but were not
designed to be placed in a looseleaf binder and were smaller in
dimension, have been classified in heading 4202, HTSUS. For
example, in HRL 087026, dated July 24, 1990, we classified as a
set a PVC pencil pouch that measured 4-3/4 inches by 8 inches, a
pencil, an eraser and a ruler. As the pencil pouch provided the
set's essential character it was classifiable in subheading
4202.32.2000, HTSUS. In HRL 085769, dated January 29, 1990, we
classified two PVC cases in heading 4202, HTSUS. The first article
was a PVC padded flat case with a slide fastener opening and which
was outlined with a nylon cord piping along the seam in heading
4202, HTSUS. The second case was a 2 inch gusseted, unlined case
with a contrasting slide fastener opening. The slide fastener
overhung on either end of the pouch by 2-1/2 inches and could be
snapped to the side of the case. A nylon cord rope was attached
to the slide fastener to aid in opening the pouch. The entire case
measured 8 inches by 4 inches. As both items qualified as a type
of bag or pouch designed for transporting pencils or pens and which
is normally carried in the pocket or handbag, they were classified
in heading 4202, HTSUS. See also, NYRL 877475, dated August 26,
1992, in which Customs classified a pencil pouch constructed of
vinyl that measured approximately 8-1/2 inches by 4 inches in
subheading 4202.32.2000, HTSUS.
The articles in the instant case are distinguishable from the
pencil pouches classified in HRL 085526 and NYRL 884887. As HRL
085526 points out, the pencil pouches were designed to be carried
inside a looseleaf binder and they were considered too large to be
placed in the pocket or handbag. Therefore, the pouches were not
classifiable in subheading 4202.32, HTSUS. In the instant case,
the dirty diaper bags are designed to be carried inside a diaper
changing bag, an article classifiable in heading 4202, HTSUS. In
addition, while the sizes of the subject bags might preclude their
classification in subheading 4202.32, HTSUS, their use, function
and design do not preclude their classification in heading 4202,
HTSUS.
Moreover, a comparison of the language of heading 3923, HTSUS,
and heading 4202, HTSUS, reveals that the former heading provides
for goods of a commercial nature (i.e, containers for packing and
shipping bulk or commercial goods), whereas heading 4202, HTSUS,
provides for containers used to convey personal articles in
general. Enumerated exemplars in the ENs to heading 3923 include
such articles as boxes, cases, crates, sacks, bags, carboys,
bottles, flasks, spools, cops, bobbins, stoppers, lids, caps, other
closures and similar articles. It is clear that this heading
provides for cases and containers of bulk goods and commercial
goods not personal items. Conversely, heading 4202, HTSUS,
provides for a variety of containers ranging from luggage to sports
and travel bags, to fitted cases, and assorted similar articles.
The key distinction is "that heading 3923, HTSUSA, provides for
more industrial or commercial type containers intended to transport
bulk or commercial articles while heading 4202, HTSUSA, provides
for, in part, containers designed to transport the assorted
personal belongings of an individual whether it be food, clothing,
documents, tools, etc..." See, HRL 954072, dated September 2,
1993. Therefore, as the subject bags will store, transport and
protect belongings of an individual, they are classifiable in
heading 4202, HTSUS.
HOLDING:
NYRL 892433 is affirmed. The dirty diaper bag with a zipper
is classifiable in subheading 4202.92.4500, HTSUS. The applicable
rate of duty is 20% ad valorem.
The dirty diaper bags without zipper closures are also
classifiable in subheading 4202.92.4500, HTSUS.
We note that this ruling is inconsistent with NYRL 870762,
dated February 6, 1992, which was also issued to you on behalf of
Dolly, Inc. In addition, based on our discussion of the scope of
heading 3923, HTSUS, the pencil pouches at issue in HRL 085526 and
NYRL 884887 were incorrectly classified. Therefore, pursuant, to
section 625(c)(1) of Title VI of the North American Free Trade
Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), we
intend to take appropriate action to revoke NYRLs 870762, 884887
and HRL 085526 in accordance with the position taken in this
ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division