CLA-2 R:C:T 957917 ch
Louis S. Shoichet, Esq.
Tompkins & Davidson
One Astor Plaza
1515 Broadway - 43rd Floor
New York, New York 10036
Re: Modification of Headquarters Ruling Letter 087537;
tariff classification of a tote bag; travel, sports and
similar bag; not a handbag.
Dear Mr. Shoichet:
In Headquarters Ruling Letter (HRL) 087537, dated October 2,
1990, you were advised that the tariff classification for a tote
bag was subheading 4202.22.4500, Harmonized Tariff Schedule of
the United States (HTSUS), which provides for handbags, with
outer surface of certain textile materials. We have had occasion
to review HRL 087537 and find that the tariff classification of
the tote bag is partially in error.
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed modification of
HRL 087537 was published May 31, 1995, in the Customs Bulletin,
Volume 29, Number 22.
FACTS:
In HRL 087537 the goods were described as follows:
The merchandise at issue is a 100 percent woven cotton bag
measuring approximately 14 x 10 x 5 inches. It has a
reinforced open top with double carrying straps. The
article has no lining and no interior or exterior pockets or
compartments.
ISSUE:
What is the proper tariff classification for the tote bag?
LAW AND ANALYSIS:
HRL 087537 made reference to the similarity between the
instant merchandise and the goods at issue in HRL 086094, dated
March 16, 1990 (modified for reasons not relevant here in HRL
086676, dated March 21, 1990). In HRL 086094, we concluded that
certain tote bags were classifiable as handbags, as they
"function primarily as secondary handbags used to carry various
objects which do not fit into a woman's regular handbag." This
rationale was enunciated in J.E. Mamiye & Sons, Inc. v. United
States, 509 F. Supp. 1268, 85 Cust. Ct. 92 (1980), aff'd, 665
F.2d 336, 69 C.C.P.A. 17 (1981) decided under the prior tariff,
the Tariff Schedules of the United States (TSUS). In that
decision, the Court concluded that the tariff item for handbags
prevailed over a provision for textile shopping bags. In light
of this precedent, the subject merchandise was classified as a
handbag of subheading 4202.22, HTSUS.
However, HRL 086094 and HRL 086676 were subsequently revoked
by HRL 950708, dated December 24, 1991. In that decision, we
observed that:
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 en 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.
In HRL 951113, dated May 19, 1992, we were asked to
reconsider HRL 950708. At that time, we stated that:
By specifically including shopping bags of this heading
within the broad category of goods designed for carrying
personal effects during travel, it is clear Congress (a)
took notice that shopping bags may be correctly classifiable
within heading 4202, HTSUSA, and (b) did not intend for the
"travel, sports and similar bags" provision to encompass
only those bags sufficiently sturdy to withstand the rigors
of travel that conventional luggage is designed to meet.
Accordingly, HRL 950708 was affirmed.
In view of the foregoing, the Customs Service is no longer
of the opinion that tote bags of a kind similar to the instant
goods are classifiable as handbags. Rather, they are regarded as
multipurpose bags for carrying various personal effects. We note
that samples of the goods in question possess hangtags which
market the totes as follows:
Canvas Tote
Hand/Shoulder Strap
Travel-Shopping-Beach
Book-School-Knitting
Therefore, the totes are regarded as travel, sports and similar
bags of subheading 4202.92, HTSUS.
HOLDING:
The subject merchandise is classifiable under subheading
4202.92.1500, HTSUS, which provides for travel, sports and
similar bags: with outer surface of textile materials: of
vegetable fibers and not of pile or tufted construction: of
cotton. The applicable rate of duty is 7.1 percent ad valorem.
The textile category is 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 the subject of frequent negotiations 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 issuance
of the U.S. Customs Service, which is updated weekly and is
available at the 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 the local
Customs office prior to importing the merchandise to determine
the current status of any import restraints or requirements.
In accordance with 19 U.S.C. 1625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decision pursuant to section 625 does
not constitute a change of practice of position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division