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HQ 960009




October 16, 1997
CLA-2 RR:TC:TE 960009 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3030; 4202.92.4500

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

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