CLA-2 OT:RR:CTF:FTM H154036 PJG
Mr. Stephen S. Spraitzer
Law Offices of George R. Tuttle
A Professional Corporation
One Embarcadero Center, Suite 730
San Francisco, CA 94111
RE: Affirmation of NY N136175; Modification of NY N136175 by operation of law; tariff classification of handbags, backpack, and travel bag
Dear Mr. Spraitzer:
On January 4, 2011, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) N136175 to you on behalf of your client, Dorfman-Pacific, Inc. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of five items, specifically, two styles of handbags (styles BA2082-Lime and VAHBA2362-ASST), one style backpack (style BA2210-BRN), and two styles of travel bags (styles BAG427-TURQ and BAG480-GRAF). In a letter dated March 3, 2011, you requested reconsideration of NY N136175. The subject request for reconsideration concerns the tariff classification of four of the items classified in NY N136175, specifically, style BA2082-Lime, style BA2210-BRN, style VAHBA2362-ASST, and style BAG427-TURQ. We have reconsidered NY N136175 with regard to those four items and we have determined that the ruling is modified by operation of law.
FACTS:
In NY N136175, the subject merchandise was described as follows:
Style BA2082-Lime is a handbag constructed with an outer surface of twisted paper yarns. It is designed and sized to contain the small personal effects normally carried on a daily basis. The interior of the bag is textile-lined and features a zippered pocket on one sidewall and two open pockets on the other. It secures with a zipper closure at the top. The bag has two circular carrying handles comprised of different colored plastic beads. It measures approximately 10” (W) x 8” (H) x 3” (D).
Style BA2210-BRN is a backpack constructed with an outer surface of twisted paper yarns. The bag is designed to provide storage, protection, organization and portability for accessories and personal effects during travel. Two adjustable straps are permanently attached to the rear exterior of the bag which enables the user to wear the bag over the shoulders and on the back. At the top of the bag, there is a loop for hanging. The backpack has a textile-lined interior compartment with a zippered pocket on the sidewall. The pack has a flap and secures with both a magnetic and drawstring closure. The approximate measurement is 13.5” (W) x 12” (H).
Style VAHBA2362-ASST is a handbag constructed with an outer surface of twisted paper yarns. It is designed and sized to contain the small personal effects normally carried on a daily basis. The bag has a textile-lined interior compartment with a zippered pocket and two open pockets on the sidewalls. It has a snap closure and two decorative shoulder straps for carrying. The handbag measures approximately 12” (W) x 11” (H) x 5” (D).
Style BAG427-TURQ is a tote bag constructed of twisted paper yarns. It is designed to provide protection, portability, storage, and organization to clothing, sundry articles, or personal effects during travel. The bag has a textile-lined storage compartment with an open pocket on the sidewall. It secures with a nylon zipper closure and has two circular carrying handles. The tote bag measures approximately 22” (W) across the top x 14” (H) x 8” (D).
In NY N136175, we classified handbag styles BA2082-Lime and VAHBA2362-
ASST in subheading 4202.22.8070, HTSUS, which provided, in relevant part, for “Handbags, whether or not with shoulder strap, including those without handle: With outer surface of sheeting of plastics or of textile materials: With outer surface of textile materials: Other: Other: Other: Of paper yarn.” We also classified one backpack (style BA2210-BRN), and one travel bag (style BAG427-TURQ) in subheading 4202.92.3005, HTSUS, which provided, in relevant part, for “Travel, sports and similar bags: With outer surface of textile materials: Of paper yarn or of cotton; containing 85 percent or more by weight of silk or silk waste: Of paper yarn.”
In your request for reconsideration, you argue that “the strands used to construct
the Dorfman handbags are “more akin to plaiting materials, such as raffia” than to yarns and therefore, they are “properly classifiable under HTS subheading 4602.90.00, as articles made of plaiting materials.” To support your argument, you submit a declaration from a textile expert, Ms. Deborah Young, stating that “the strands used to fabricate the Dorfman handbags do not fall within any of the definitions of ‘yarns’” found in the Explanatory Notes. Ms. Young also states that “the paper strands in the four toyo handbags would not be considered twine, rope, cables or cordage.” Ms. Young further states that “[t]he toyo strands resemble reed, cane and raffia, not yarn.” She finally states that “[t]he Dorfman toyo strands are closely and visually aligned with and made to imitate raffia, which is a traditional plaiting material and not a yarn.”
You also provided one sample of each of the subject items as well as a sample
of BAG480-GRAF. The samples were examined by the CBP Office of Laboratories and Scientific Services (hereinafter, CBP laboratory).
We held a telephone conference with you, Mr. Gary Graff, and Ms. Deborah Young, on July 20, 2017 and subsequently, your firm filed a supplemental submission dated August 11, 2017. In the supplemental submission, you raised additional arguments and included Ms. Young’s amendment to paragraph 6 of her original declaration.
ISSUE:
Whether the subject handbags, backpack, and travel bag are classifiable in heading 4202, HTSUS, as handbags or travel bags, or in heading 4602, HTSUS, as “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601.”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“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 GRIs may then be applied.
The 2017 HTSUS provisions under consideration are as follows:
4202 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, insulated food or beverage
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:
4602 Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah:
Additional U.S. Note 1 to Chapter 42 provides, in part, as follows:
For the purposes of heading 4202, the expression “travel, sports and
similar bags” means goods, other than those falling in subheading 4202.11 through 4202.39, of a kind designed 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 42.02 states, in pertinent part:
The heading does not cover:
Articles of plaiting materials (heading 46.02).
The EN to 53.08 states, in pertinent part:
* * *
(B) Paper yarn.
This group covers yarns, whether single or multiple (folded), of paper. They are classified here whether or not put up for retail sale, and whether or not in the form of twine, cordage, rope or cables, but excluding plaited cordage, rope and cables.
Yarns remain in this group whether or not processed as indicated in Part (I) (B) (1) of the General Explanatory Note to Section XI.
Single yarns are obtained by twisting or rolling lengthwise strips of moist paper (sometimes coated); multiple (folded) yarns are obtained by doubling two or more single yarns.
* * *
We note that "[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct. Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, 85 (1965) (citing United States v. Gage Bros., 1 Ct. Cust. 439 (Ct. Cust. App. 1911); United States v. Lozano, Son & Co., 6 Ct. Cust. 281 (Ct. Cust. App. 1915); and Draper & Co., Inc. v. United States, 28 Cust. Ct. 136 (1952)). The court in Consolidated Cork Corp. also held that “this presumption may be rebutted by showing that such methods or results are erroneous.” Id. (citing Sears, Roebuck & Co. v. United States, 3 Ct. Cust. 447 (Ct. Cust. App. 1912); Gertzen & Co. v. United States, 12 Ct. Cust. 499 (Ct. Cust. App. 1925); and Pastene & Co., Inc. v. United States, 34 Cust. Ct. 52, C.D. 1677). It also stated that “the presumption does not have evidentiary value and may not be weighed against relevant and material proof offered by the plaintiffs. If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Id. (citing United States v. Edson Keith & Co., 5 Ct. Cust. 82 (Ct. Cust. App. 1914); Hawley & Letzerich et al. v. United States, 19 C.C.P.A. 47 (C.C.P.A. 1931); United States v. Magnus, Mabee & Reynard, Inc., 39 C.C.P.A. 1 (C.C.P.A. 1951); James Bute Company v. United States, 33 Cust. Ct. 130 (1954)).
You provided a declaration from a textile expert stating, in part, that “the strands used to fabricate the Dorfman handbags do not fall within any of the definitions of ‘yarns’” in Section XI or the General EN to Section XI and also that “the paper strands in the handbags could be considered plaiting material, because the paper strands are made to simulate traditional plaiting materials like raffia, a traditional, more expensive plaiting material.” Since there is no dispute that the four subject items are composed of paper strands, and that the paper strands are not twine, cordage, ropes or cables, we turn to whether the paper strands are “yarns.” To determine whether the subject paper strands are “yarns,” we reference EN 53.08, which concerns paper yarns. EN 53.08 states, in relevant part, that “[s]ingle yarns are obtained by twisting or rolling lengthwise strips of moist paper (sometimes coated); multiple (folded) yarns are obtained by doubling two or more single yarns.” General EN to Section XI, specifically, Table I, also provides that paper yarns are always provided for in heading 5308, HTSUS. We also note that EN 53.08 states that yarns are considered paper yarn “whether or not processed as indicated in Part (I)(B)(1) of General EN to Section XI.” In supplemental comments, dated December 23, 2011, that you provided to CBP with regard to this matter, you referred to the textile expert’s declaration, and you reiterate that the paper strips are “twisted only to make them smaller, more malleable, and more usable in performance.” In response to questions submitted to you by the National Commodity Specialist Division, you also stated the following:
The toyo paper is cut into seven millimeter rolls, then those seven millimeter paper rolls are twisted into single paper threads. Typically nine single paper threads are braided into a braid paper that is used in the manufacture of the handbags. The braid paper is tightly woven into a pattern and to the shape of the particular style of handbag.
In your supplemental comments, dated August 11, 2017, you state that the paper strands in the subject articles do not meet the definition of “single yarns” as provided by EN to Section XI for two reasons. First, you state that General EN (I)(B)(1) to Section XI requires that single yarns are composed of “[s]taple fibers, usually held together by twist (spun yarns)” and you emphasize that the term “fibers” in this General EN is plural. In this regard, you state that the paper strands consist of single rather than multiple strips and therefore cannot be considered single yarns. Please note that EN 53.08 states that “[y]arns remain in this group whether or not processed as indicated in Part (I) (B) (1) of the General Explanatory Note to Section XI.” Second, you argue that the instant “paper strands are not ‘single yarns,’ because single yarns consist of short fibers” and “[s]hort fibers are not present with the toyo bags in issue.” Please note that EN 53.08 provides that “[s]ingle yarns are obtained by twisting or rolling lengthwise strips of moist paper.” Moreover, the CBP laboratory considered the instant merchandise and found that all four samples were constructed of paper yarn that was obtained by twisting or rolling paper strip. Therefore, we conclude that each of the four items subject to this ruling is composed of paper yarn.
Moreover, we note that you do not dispute that the subject merchandise consists of two handbags (styles BA2082-Lime and VAHBA2362-ASST), one backpack (style BA2210-BRN), and one travel bag (style BAG427-TURQ). Accordingly, we conclude that the two handbags, the backpack, and the travel bag are classified in heading 4202, HTSUS. With regard to the appropriate classification at the subheading level, we note that in 2011, styles BA2082-Lime and VAHBA2362-ASST were correctly classified in subheading 4202.22.8070, HTSUS, however, in the 2016 HTSA Supplemental Edition, the numbering was modified after the six digit level for subheading 4202.22, HTSUS. Therefore, NY N136175 is modified by operation of law, with regard to the classification of styles BA2082-Lime and VAHBA2362-ASST. As a result of the modifications made in the 2016 HTSA Supplemental Edition, these two style handbags are now classified in subheading 4202.22.8970, HTSUS, which provides, in relevant part, for “Handbags, whether or not with shoulder strap, including those without handle: With outer surface of sheeting of plastics or of textile materials: With outer surface of textile materials: Other: Other: Other: Of paper yarn.”
We also note that in 2011, styles BA2210-BRN and BAG427-TURQ were correctly classified in subheading 4202.92.3005, HTSUS, however, in the 2016 HTSA Supplemental Edition, the numbering was modified after the six digit level for subheading 4202.92, HTSUS. Therefore, NY N136175 is modified by operation of law, with regard to the classification of styles BA2210-BRN and BAG427-TURQ. As a result of the modifications made in the 2016 HTSA Supplemental Edition, the backpack (style BA2210-BRN) and travel bag (style BAG427-TURQ) are now classified in subheading 4202.92.3305, which provides, in relevant part, for “Travel, sports and similar bags: With outer surface of textile materials: Of paper yarn or of cotton; containing 85 percent or more by weight of silk or silk waste: Of paper yarn.” This subheading level determination is consistent with the language in Additional U.S. Note 1, which provides that backpacks are included in the expression “travel, sports and similar bags.”
In the amended declaration that you submitted with your supplemental submission, dated August 11, 2017, Ms. Young stated that her original declaration in paragraph 6 was “due to an oversight on [her] part.” She stated that she “was focusing on the definition of a ‘yarn’ versus paper tape, not the nuance of whether the paper strips were folded or flat and whether the twists were incidental or deliberate.” First, we note that paragraph 6 of the original declaration did focus on whether the paper strips were folded or twisted. In fact, it stated, in relevant part, “The strands are first twisted by themselves, and thereafter are twisted with each other to complete the larger paper strand.” Second, in the supplemental submission, you state that style BA2082 is constructed of “2 ply twisted paper tape.” As noted earlier, in accordance with the CBP laboratory’s finding, we agree that the paper yarn in this style handbag is twisted. Therefore, there is no dispute with regard to whether style BA2082 consisted of paper strips that were twisted. Third, the photos submitted along with the supplemental submission do not support the allegation that the paper strips in styles VAHBA2362-ASST and BAG427-TURQ are not twisted or, in the case of style BA2210-BRN, that they are loosely and incidentally twisted. The close-up photograph of BA2210-BRN and BAG427-TURQ suggest that the paper yarn is twisted, and the photograph for VAHBA2362-ASST is not clear enough to indicate this information one way or another. Fourth, we disagree with the assertion that the twist in style BA2210-BRN is loose or incidental, and regardless, we note that whether a twist is incidental is irrelevant in the determination of whether a paper strip is in fact actually twisted. There is no reference to incidental or intentional twisting in the heading, in the legal notes, or in the ENs. You cite to HQ 959877, dated July 31, 1997, to support your assertion that paper strips that are incidentally twisted are not yarns. In HQ 959877, we stated that the paper strips at issue were “merely folded lengthwise and are neither twisted or rolled into paper yarn. We believe that any twists evident in the finished bags surface were created during the crocheting process.” According to a CBP Supplemental Laboratory Report concerning BA2210-BRN, the CBP laboratory’s analysis indicated that “the 2-ply paper yarns were twisted or rolled before the crocheting process.” Therefore, HQ 959877 is inapplicable to the instant merchandise.
HOLDING:
Under the authority of GRIs 1 and 6 the two handbags (styles BA2082-Lime and VAHBA2362-ASST), one backpack (style BA2210-BRN), and one travel bag (style BAG427-TURQ), are classified in heading 4202, HTSUS. Specifically, styles BA2082-Lime and VAHBA2362-ASST are classified in subheading 4202.22.8970, HTSUS, which provides, in relevant part, for “Handbags, whether or not with shoulder strap, including those without handle: With outer surface of sheeting of plastics or of textile materials: With outer surface of textile materials: Other: Other: Other: Of paper yarn” and styles BA2210-BRN and BAG427-TURQ are classified in subheading 4202.92.3305, which provides, in relevant part, for “Travel, sports and similar bags: With outer surface of textile materials: Of paper yarn or of cotton; containing 85 percent or more by weight of silk or silk waste: Of paper yarn.” The 2017 column one, general rate of duty for both subheadings is 17.6 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N136175, dated January 4, 2011, is MODIFIED by operation of law.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division