CLA-2 OT:RR:CTF:CPMM H288634 MAB
Port Director
U.S. Customs and Border Protection
JFK International Airport
Building 77, 2nd Floor
Jamaica, NY 11430
Attn: Jay Alweis, Import Specialist
CEE – Consumer Products & Mass Merchandising
Re: Application for Further Review of Protest No. 4701-16-100400: PVC Tote Bag
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest 4701-16-100400, dated October 18, 2016, filed by Mr. Barry Boren, Law Offices of Barry Boren, on behalf of ACI, Inc. The AFR concerns U.S. Customs and Border Protection’s (CBP) classification of a Polyvinyl Chloride (PVC) Tote Bag under the Harmonized Tariff Schedule of the United States (HTSUS). After repeated requests, protestant did not provide a sample of the subject bag to CBP. We have considered the comments made by protestant’s counsel during a telephone call on January 17, 2020, with members of my staff. During that meeting, protestant withdrew its claim for classification under subheading 4202.92.1000, HTSUSA (Annotated), which provides for insulated cooler bags.
FACTS:
The subject bag is described on the commercial invoice as a PVC Tote. It is constructed with an outer surface of 100% polyvinyl chloride (PVC) sheeting and a polyester inner lining. There is a zipper located 4 inches above the base of the bag that wraps around its circumference and, when unzipped, expands the height of the bag by 4 inches. When the zipper is zipped closed, the subject bag measures 13-3/4 inches in length, 4-3/4 inches in width, and 10 inches in height. When the zipper is unzipped and the bag is expanded, it is 14 inches in height. The bag has parallel double carrying straps that are 5 inches deep. There is a snap closure at top. The bag comes in a combination of several different colors.
Protestant states that within the inner lining there is both an inner pocket to hold small loose items and a microfiber inner divider separating the main compartment into two smaller sections. Protestant also states the bag is substantially constructed. Since protestant did not provide a sample and the quality of some of the photographs provided is poor, we are unable to verify these claims.
This Protest and AFR were timely filed on October 18, 2016, and cover one entry of the subject merchandise made on August 13, 2015, under subheading 4202.92.1000, HTSUSA, which provides for insulated cooler bags. The entry was liquidated on April 29, 2016, under subheading 4202.92.4500, HTSUSA, which provides for plastic travel, sports and similar bags. Protestant now submits that the subject bag should be classified under subheading 4202.22.1500, HTSUSA, as a handbag with an outer surface sheeting of plastic.
ISSUE:
Is the PVC Tote Bag classified in subheading 4202.22.1500, HTSUS, as a handbag, or in subheading 4202.92.4500, HTSUS, as a travel, sports or similar bag?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on October 18, 2016, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further Review of Protest 4701-16-100400 was properly accorded to protestant pursuant to 19 C.F.R. §174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts.
Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that the classification 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 2015 HTSUS provisions under consideration are as follows:
4202 Trunks, suitcases, vanity cases, attaché 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:
Handbags, whether or not with shoulder strap, including
those without handle:
4202.22 With outer surface of sheeting of plastic or of textile
materials:
4202.22.15 With outer surface of sheeting of plastic …
* * *
Other:
4202.92 With outer surface of sheeting of plastics or of textile
materials:
Travel, sports and similar bags:
4202.92.45 Other
* * *
Additional U.S. Note (AUSN) 1 to chapter 42 states:
For the purposes of heading 4202, [HTSUS,] the expression "travel, sports and similar bags" means goods, other than those falling in subheadings 4202.11 through 4202.39, [HTSUS,] 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.
* * *
Subheading 4202.22, HTSUS, provides for “handbags” – a term which is not defined in the HTSUS. A tariff term that is not defined in the HTSUS is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 C.C.P.A. 89, 92 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 134, 673 F.2d 1268, 1271 (1982). In Headquarters Ruling Letter (HQ) H004184, dated July 2, 2007, CBP set forth several dictionary definitions of handbags, such as “[an] accessory carried primarily by women and girls to hold such items as money, credit cards, and cosmetics” and “a woman’s bag held in the hand or hung from a shoulder strap and used for carrying small personal articles and money.” Thus the common meaning of a handbag is a bag carried by women to hold small personal items such as money, credit cards, and cosmetics.
CBP has established several factors to distinguish handbags of subheading 4202.22, HTSUS, from tote bags of subheading 4202.92, HTSUS. With regard to handbags, CBP has stated that typically, they are smaller than tote bags, are designed to carry small personal items, include an inner lining, are reinforced along the bottom and corners, incorporate a substantial closure such as a zipper closure and include compartments to organize small personal items. See HQ 959062, dated January 28, 1997, HQ 960899, dated September 24, 1999, and HQ H005625, dated November 28, 2007. Regarding tote bags, CBP has stated that a tote bag generally has at least one side which exceeds 12 inches in length and can carry many different sundry items such as food, books, or clothing. See HQ 082271, dated December 1, 1988, and HQ 950708, dated December 24, 1991.
Protestant states that the primary purpose of the subject bag is its use when zipped as an everyday handbag. Protestant asserts that women’s handbags have become larger in size over the years so women can bring one pair of shoes to work while wearing a different pair to travel to work. Protestant explains that with the subject bag, women will carry only one bag to work and not two; therefore it cannot be an auxiliary tote bag. Protestant further claims that although the bag is large enough to carry one pair of shoes (in addition to the smaller items that are usually carried in a handbag), it is not big enough to carry food, books, or clothing, like a tote bag.
The classification of similar merchandise was addressed in HQ H140975, dated April 5, 2011. CBP tested the capacity of three bags by placing two (2) bottles of water, a pair of women’s shoes, books and other large items into them. The two bags which had two sides exceeding 12 inches in length (the pewter bag and the big berry bag), had the capacity to hold these items and despite having design features in common with a handbag (e.g., inner lining, reinforced bottom and a substantial closure), they were each classified as a tote bag under subheading 4202.92.4500, HTSUS. The third bag (the small berry bag) had one side exceeding 12 inches in length but unlike the other two bags which had longer carrying handles, it had one short strap affixed to either side, thereby making it difficult to carry the aforementioned sundry items while properly securing the bag’s top. For this reason, it was classified as a handbag of subheading 4202.22.15, HTSUS.
Also, in HQ H268949, dated January 30, 2017, CBP considered the classification of a women’s hobo bag (style no. 37556). This bag closed at the top with a zipper and was characterized by a crescent shape, measuring at 14-1/2 inches in length, 6 inches in width, and 9.5 inches in height at its center and 13 inches on each side of its crescent shape. It had one carrying strap affixed to either side of the bag designed to be carried by hand or over the shoulder. Like the small berry bag in HQ H140975, the hobo bag had one side exceeding 12 inches as does a typical tote bag. However, since it also had a shorter carrying strap that caused it to become taut across the bag’s opening at top when filled with various sundry items (e.g., water bottles, a pair of shoes, books, etc.), thus making it difficult to maneuver them and close the zipper on top. CBP therefore concluded that the hobo bag was designed to carry small personal items and classified it as a handbag of subheading 4202.22.1500.
Applying Customs’ established criteria for defining tote bags to the instant case, the subject bag has at least one side exceeding 12 inches in length and, when unzipped, it has two sides exceeding 12 inches in length. These dimensions are substantially similar to the two bags classified as tote bags in HQ H140975. Despite having some design features in common with a handbag (e.g., inner lining), as protestant has acknowledged, the instant bag is large enough (presumably when unzipped) to carry a pair of shoes. If it is large enough to carry a pair of shoes, then it is also large enough to carry other sundry items such as food, books, or clothing; especially with two sides exceeding 12 inches. Unlike the two bags with tote bag dimensions that were instead classified as handbags in HQ H140975 (small berry bag) and HQ H268949 (hobo bag), the instant bag does not have a single handle that’s close and taut across the bag’s opening and/or a zippered top opening that makes it difficult to maneuver larger items into the bag. Instead, like the two bags that were classified as tote bags in HQ H140975, the instant bag has parallel double carrying straps that make it easy to open and utilize the space of its 4-3/4 inches depth. That the instant bag allegedly has an inner divider which separates the main compartment into two smaller sections, does not preclude the carrying of sundry items. Furthermore, the commercial invoice describes the instant bag as a “PVC Tote.”
Assuming, arguendo, that the bag is a handbag when zipped as protestant claims, it is certainly a tote bag when unzipped. As such, we cannot discern its essential character under GRI 3(b) and it therefore falls to be classified under the heading which occurs last in numerical order among those which equally merit consideration under GRI 3(c). Accordingly, we find that the instant bag is a tote bag of subheading 4202.92.4500, HTSUS.
HOLDING:
Pursuant to GRIs 1, 3(c), and 6, the PVC Tote Bag is classified under subheading 4202.92.4500, HTSUS, which provides for “[T]raveling bags … handbags … of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other…” The 2015 column one, general rate of duty is 20% ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries 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 Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division