CLA-2 RR:TC:TE 960009 jb
Port Director
U.S. Customs Service
10 Causeway Street, Suite 801
Boston, Massachusetts 02222-1056
RE: Decision on Application for Further Review of Protest No.
0401-96-100141; travel pouches; Chapter 42, Additional U.S.
Note 1
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Sullivan & Lynch, P.C., on behalf of Sara
Michaels, a division of LaLoren Inc., on April 3, 1996, against
your decision regarding the classification of travel pouches.
All entries were liquidated on February 2, 1996. Samples were
submitted to this office for examination.
FACTS:
The submitted merchandise, referenced styles 92026, 93022,
94101, 94104 and 93144, consist of a variety of bags which are
imported empty, but subsequent to importation will be sold and
retail packaged with various toiletries or bath products.
Although the Protestant has indicated that all of the merchandise
is made up of PVC material, this is not an accurate reflection of
the subject merchandise. The different styles (even within the
same style number) are not all composed of the same material.
The same style may be made up alternately of a clear PVC sheeting
and an exterior of man-made textile material with a compact
plastic backing, or of a clear PVC sheeting and an exterior of a
solid color embossed compact plastics with a woven fabric
backing. Accordingly, as per the discussion that will follow,
the essential character of the subject merchandise is not always
imparted by the PVC material.
The Protestant has described the merchandise as follows:
92026- a transparent PVC pouch with a flap cover with a
press button closure; the bag has trimming and a ribbon loop
and measures 8-1/2 inches by 7 inches by 2-1/4 inches;
93022- a transparent vinyl pouch with a PVC top and bottom
and a zipper closure at the top; the bag measures 8-3/4
inches by 5-1/8 inches by 5-1/8 inches;
94101- a transparent PVC pouch with a string closure;
94104- a transparent PVC pouch with two handles and a zipper
closure at the top;
93144- a PVC round bag with loop.
The literature on the bags clearly describe the above
merchandise as travel bags. Some of the wording on the
literature reads "Travel Ensemble", and indicates that the
merchandise is for "women on the go" which "may be used to hold
cosmetic items, scarves or jewelry".
Customs classified the subject merchandise in heading 4202,
Harmonized Tariff Schedule of the United States (HTSUS), which
provides for, among other things, traveling bags with outer
surface of sheeting of plastics. In the opinion of the
Protestant that classification determination is incorrect. The
Protestant advocates classification of the subject merchandise in
heading 3923, HTSUS, which provides for, among other things,
articles for the packing or conveyance of goods, of plastics. In
support of this claim the Protestant makes reference to the
following:
1. Customs interpretation of articles classifiable in
heading 4202, HTSUS, is too broad; Headquarter Ruling
Letter(HQ) 955660 and HQ 082218 are cited;
2. The subject merchandise would not be used as a travel
case because of its poor construction; New York Ruling
Letter (NY) 894410, NY 809095, NY 803747 and NY 871394
are cited;
3. No attempt is being made to market the subject
articles- only the articles contained therein;
4. Alternative classification is sought in heading 3924,
HTSUS; NY 871696 and HQ 952433 are cited.
ISSUE:
Whether the subject merchandise is classifiable in heading
4202, HTSUS, which provides for, among other things, traveling
bags with outer surface of sheeting of plastics or in heading
3923, HTSUS, which provides for, among other things, articles for
the packing or conveyance of goods, of plastics?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 provides
that classification shall be determined according to the rules of
the headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI.
Heading 4202, HTSUS, provides for, 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. (Emphasis
added). 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....
Heading 3923, HTSUS, provides for articles for the
conveyance or packing of goods, of plastics; stoppers, lids, caps
and other closures, of plastics. Legal Note 2(ij), Chapter 39
excludes from Chapter 39, saddlery or harness or trunks,
suitcases, handbags, or other containers of heading 4202, HTSUS.
The Explanatory Notes to the Harmonized Commodity Description and
Coding System (EN) to that heading state:
The heading excludes, inter alia, household articles such as
dustbins, and cups which are used as tableware or toilet
articles and do not have the character of containers for the
packing or conveyance of goods, whether or not sometimes
used for such purposes (heading 39.24), containers of
heading 42.02 and flexible intermediate bulk containers of
heading 63.05.
The Protestant asserts that Customs interpretation of
articles classifiable in heading 4202, HTSUS, is too far reaching
and that the interpretation of articles classifiable in heading
3923, HTSUS, is too narrow. In support of this claim, HQ 955660,
dated September 27, 1994, wherein PVC pouches and bags were
classified in heading 4202, HTSUS, is cited. Similarly, the
Protestant disagrees with Customs interpretation that the
permanent nature of the article is
determinative of classification. To illustrate this point HQ
082218, dated February 27, 1990, wherein a plastic patient
belonging bag, not substantially constructed, was classified in
heading 3923, HTSUS, is cited.
In Totes Inc., v. United States, 18 C.I.T. 919, 865 F. Supp.
867, 871 (1994), the Court of International Trade concluded that
the "essential characteristics and purpose of the Heading 4202
exemplars are...to organize, store, protect and carry various
items." The Court also ruled that by virtue of ejusdem generis
the residual provision for "similar containers" in heading 4202,
HTSUS, is to be broadly construed. It is evident from the above
referenced court case that Customs interpretation of articles
classifiable in heading 4202, is clearly supported and upheld by
the Court of International Trade. The subject bags are of a kind
designed to provide storage, protection, organization and in some
way, portability, as expressly stated in the Note to heading
4202, HTSUS and confirmed in Totes. They are also substantially
similar to the PVC pouches and bags ruled classified in heading
4202, HTSUS, in HQ 955660. See also HQ 958174, dated January 31,
1996, where a heart-shaped PVC shoulder bag was classified in
heading 4202, HTSUS.
With respect to Protestant's argument that Customs
interpretation of heading 3923, HTSUS, is too restrictive, we
disagree. The articles enumerated in the EN's to heading 3923,
HTSUS, clearly indicate items, which by the nature of their size
or use, are designated for a commercial purpose and not for
"household use". On the other hand, the articles of 4202,
HTSUS, as provided for by the EN to that heading, are intended
for personal use and will be used repeatedly over a given period
of time. Accordingly these 4202 articles will be substantially
constructed. The presence of heading 3923, HTSUS and heading
4202, HTSUS, is clearly an intended classification distinction
under the tariff.
HQ 082218 is also distinguishable from the subject
merchandise. The patient belonging bag in that determination was
made of polyethylene (PE) plastics- a plastic which is normally
not as durable as the PVC plastic of the protested articles.
The patient bags are purchased by hospitals, clinics and medical
laboratories at wholesale and are used by outpatients, as well as
inpatients on a one time use basis and disposed of after initial
use. The patient bags are neither designed for prolonged use nor
are they normally sold at retail. As these patient bags were
found not to be for prolonged use and not substantially
constructed, they were correctly classified in heading 3923,
HTSUS.
In NY 809095, dated April 25, 1995, NY 803747, dated
December 2, 1994, NY 894410, dated February 7, 1994 and NY
871394, dated February 24, 1992, bags which were specially shaped
or fitted to contain bedding were classified in heading 3923,
HTSUS. That determination was based on the fact that the bags
were of a kind normally sold at retail with the contents and not
of a kind used to contain personal effects during travel. The
subject merchandise is distinguishable in that the bags are not
of a kind normally used in the packaging of toiletries/cosmetics
and are of a kind sold at retail on their own merits as travel or
toiletry bags. Thus, while articles of bedding are usually found
packaged in some form of plastic carrying container, they are
intended for temporary use. Once the item of bedding is
purchased, the bag is most likely discarded. It is highly
unlikely that the subject merchandise, which holds the various
toiletries will be discarded. In fact, the packaging and
advertisement for this merchandise is very suggestive to the
consumer that the incentive to purchase these items is not only
for the contents
but even more so for the convenient carrying case in which they
are placed. We similarly disagree with the Protestant's
assertion that "since the bag is not leak proof a wise traveler
would not carry soap or bath gel in it. A more likely use would
be to store household articles inside it.... The shape of the bag
was specifically designed to pack articles, not for prolonged
use". It is the opinion of this office that these bags are the
type of bags specifically provided for in heading 4202, HTSUS,
that is, traveling bags and toiletry bags. It is not pure
coincidence that the articles they carry consist of toiletries
and other personal use items. We also do not feel that these
bags are "specially designed" for these articles. The bags are
simply not specially fitted for the toiletry articles they will
contain inside. We are of the opinion however, that the PVC
construction and compact size of these bags makes them durable
and ideal for travel.
The claim that these bags are not being marketed as "travel
bags" has no merit. As we have already stated, the accompanying
literature on this merchandise is more than suggestive to the
consumer that these bags are not to be discarded but are to be
used over and over again, particularly for travel purposes. For
example, for style 94104 the accompanying literature states:
The Handbag Ensemble is the perfect little tote for today's
active woman. Great for cosmetics and toiletries for the
gym, sunscreens, combs, or lip-balms for the beach...the
possibilities are endless! Our vinyl tote has a sleek
contemporary design which makes this ensemble a true winner
for your fashion forward customers.
A similar advertisement reads:
The Travel Ensemble is the perfect gift for the woman on the
go. The vinyl tote is reminiscent of the very popular
vintage luggage shapes with a very 90's clean look. May be
used to hold cosmetic items, scarves, or jewelry.
The impact of this literature is so strong that it is almost
debatable what is being sold to the consumer- the toiletries or
the trendy bags.
Finally, we come to Protestant's argument that if Customs
does not agree with classification of this merchandise in heading
3923, HTSUS, that alternatively, heading 3924, HTSUS, be
considered. In support of this claim HQ 952433, dated November
25, 1992 and NY 871696, dated March 25, 1992, are cited. Heading
3924, HTSUS, provides for, tableware, kitchenware, other
household articles and toilet articles, of plastic. In HQ 952433
a molded plastic soap dish or box which was designed to be worn
by an individual while showering was classified in heading 3924,
HTSUS. This article is distinguishable from the present
merchandise in that it is not an article similar to the traveling
bags of heading 4202, HTSUS. The soap dish was determined to be
a "toilet article" as provided for under that heading. The
subject merchandise on the other hand is not per se a toilet
article, but something that will transport or carry the toilet
article. In addition, as the soap dish was manufactured of a
molded plastic and not of a named material of the second half of
heading 4202, HTSUS, it cannot be considered to be classifiable
in that heading. In NY 871696, the article in question consisted
of something similar to a closet shoe bag which was designed to
be hung from a flat surface featuring a number of open pockets on
one side; the open pockets would not securely hold anything in
place. As such, this bag was not designed to contain personal
effects during travel.
We make one last observation with respect to the
classification of this merchandise. A representative sample of
the identical merchandise was submitted by the same importer and
was the subject of Port Decision (DD) 812176, dated July 13,
1995. At that time, the merchandise was described as being made
of plastic sheeting and nylon with a pull cord at the top
(similar to what is now being referred to as style 94101). It
was stated that the article was a non-reusable packing container.
DD 812176 disagreed with that assertion and found the article not
to be packing and classified it in heading 4202, HTSUS. This
decision was not protested by the importer. Thus, it appears
that the importer had prior knowledge regarding the correct
classification of this merchandise. Furthermore, as the
Protestant did not check the appropriate block in the CFR 19
Application for Further Review, we leave the matter in your
discretion regarding whether or not any action should be taken
with respect to this matter.
We find that the subject merchandise was correctly
classified in heading 4202, HTSUS.
HOLDING:
The protest should be denied in full and a copy of this
ruling should be appended to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a) Customs
Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division