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HQ 961955




December 21, 1999

CLA-2 RR:CR:TE 961955 SS

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6307.90.9989

Nancy Welsh, Import Manager
Michaels®
8000 Bent Branch Drive
Irving, Texas 75060

RE: Request for Reconsideration of Port Ruling C86943; Christmas Wine Bottle Bags; Decorative Covering; Other Made Up Textile Articles; Heading 6307, HTSUSA; Not Heading 4202, HTSUSA

Dear Ms. Welsh:

This is in response to your letter dated June 8, 1998, requesting reconsideration of Port Ruling Letter (PD) C86943, dated May 12, 1998, regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of two wine bottle bags made in China. Physical samples of the two wine bottle bags were provided with the request for reconsideration.

This letter is to inform you that after review of that ruling, it has been determined that the classification of the wine bottle bags in subheading 4202.92.9025, HTSUSA, is incorrect. As such, PD C86943 is revoked pursuant to the analysis which follows below.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of PD D80909 was published on November 17, 1999, Customs Bulletin, Volume 33, Number 46.

FACTS:

The submitted samples consist of two wine bottle bags identified as styles MS888C and MS888D. The wine bottle bags are described by the importer as “Christmas Wine Bottle Bags.” Each item is manufactured of thin woven man-made textile material and features a large textile bow. Each wine bottle bag measures approximately 12 inches in height by 6 inches in width. Style MS888D has plastic ornamentation resembling flowers and fruit attached to the center of the textile bow. Each wine bottle bag is designed to contain one standard wine bottle so that the top neck portion of the bottle is exposed permitting the label to be read. The bottom 2/3 of the wine bottle bags have a thin textile inner lining. The top 1/3 of the wine bottle bags are lined with a contrasting textile material. The wine bottle bags have elastic sewn into the inner lining
approximately 1-1/2 inches from the top which permits the top portion of the wine bottle bag to gather around the neck of the bottle and reveal the contrasting textile material. Both wine bottle bags are decorative covers for a wine or spirit bottle. Neither are intended to be used as a carrying bag. The bags are of a kind normally sold separately at retail. The importer submits that the bottle covers are designed primarily for use as gift bags for wine bottles.

ISSUE:

What is the proper tariff classification for the “Christmas Wine Bottle Bags”?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Although the “Christmas Wine Bottle Bags” do not have drawstring closures, we find that they are similar in nature to drawstring bottle bags previously classified by this office. Drawstring bottle bags of textile materials have been classified under both heading 4202, HTSUSA, and heading 6307, HTSUSA, depending on their construction and the purpose(s) for which they are designed. See Headquarters Ruling Letter (HQ) 957464, dated April 18, 1995; HQ 959538, dated November 7, 1996; HQ 960403, dated August 1, 1997; HQ 960367, dated August 6, 1997; HQ 960831, dated January 26, 1998; HQ 960830, dated July 21, 1998; and HQ 963222, dated August 19, 1999.

Heading 4202, HTSUSA, 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.

The EN to heading 4202, HTSUSA, state that the heading only covers the specifically named containers and similar containers. Although “bottle cases” are specifically enumerated in the heading, Customs has stated that wine bottle bags are not “bottle cases” as contemplated by the heading. See HQ 960367, HQ 960403, HQ 960830, HQ 960831 and HQ 963222 (cited above).

In order to warrant classification under heading 4202, HTSUSA, a bottle bag must be found to share the fundamental characteristics attributable to containers of heading 4202, HTSUSA. In Totes, Inc. v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871 (1994), aff’d, 14 Fed. Cir. (T) ___, 69 F.3d 495 (1995), the Court of International Trade concluded that the “essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” With respect to the broad reach of the residual provision for “similar containers” in heading 4202, the Court found that the rule requires only that the imported merchandise possess the essential character or purpose running through all of the enumerated exemplars. Thus we must determine whether or not the “Christmas Wine Bottle Bags” are for organizing, storing, protecting and carrying various items.

In HQ 960367 (cited above), Customs classified a “drawstring cooler sack” imported with a bottle of champagne under heading 4202, HTSUSA. The cooler sack consisted of various layers of material: an exterior layer of nylon fabric, a layer of man-made fiber for insulation, a layer composed of two layers of plastic sheeting combined with a glass fiber scrim, and an innermost layer made of plastic metalized with aluminum. Customs held that the purpose of the cooler sack was to provide protection against breakage of the bottle, insulate the bottle and keep it at a desired temperature, and secure a means by which to carry the bottle. In HQ 960403 (cited above), Customs classified a wine bottle bag composed of thick velveteen fabric (pile fabric) under heading 4202, HTSUSA. Customs stated that the pile fabric construction provided an added cushion of protection for the wine bottle in the event of any sudden blows to the encased bottle. Customs found that the purpose of the bag was to provide protection against breakage of the bottle and to secure a means by which to carry the bottle. In HQ 963222 (cited above), Customs classified another wine bottle bag composed of thick velveteen fabric (pile fabric) with a layer of foam insulation/padding under heading 4202, HTSUSA. Customs again found that the purpose of the bag was to provide protection against breakage of the bottle and to secure a means by which to carry the bottle. Due to the construction of the bag, Customs stated that the wine bottle bag did not appear to be designed principally as an alternative for gift wrapping or merely a decorative cover for a wine or champagne bottle. In all three rulings, Customs found that the construction of the bottle bags ensured that they would be used as “protective packing.”

Furthermore, Customs has stated that the substantiality of the container is a pertinent consideration in determining whether a wine bottle bag is classified in heading 4202, HTSUSA. See HQ 957464, HQ 960831 and HQ 960830 (cited above). The rationale is that substantial containers are more likely to be used for carrying purposes and are better able to protect their contents. The term "substantial" in this context refers not only to the material composition of the article, but also to whether it has been designed for repetitive use. Substantial bottle bags are classified in heading 4202, HTSUSA.

The instant wine bottle bags do not possess properties similar to the bottle bags which have been classified under heading 4202, HTSUSA. The “Christmas Wine Bottle Bags” are insubstantial in the sense that they are not designed for travel or to store, protect or organize their contents. They do not have insulation or cushioning which would preserve or protect a wine bottle. The subject wine bottle bags do not have any features that would facilitate the carrying of a wine bottle. While the bags are capable of reuse, they are designed principally as an alternative for gift wrapping and function as an attractive means for presenting their contents. The thin woven textile fabric construction does not provide an added cushion of protection for the wine bottle in the event of any sudden blows to the bottle. In fact, the fancy textile fabric functions solely as decoration. The construction of the wine bottle bags thus ensures that they will be used as decorative packaging rather than protective packing or for convenient carrying of a bottle. The bags are not constructed of materials durable enough to indicate they are intended to be used as travel or storage bags; rather, their durability is consistent with their intended use as gift bags, a more substantial substitute for wrapping paper but not durable enough for continued use for general purpose transport and travel. The lack of protective, storage and organizational properties precludes the subject merchandise from classification under heading 4202, HTSUSA.

Additionally, the EN to heading 4202, HTSUSA, excludes certain containers which are not specially shaped or fitted. Customs regards this requirement as a relevant consideration when classifying merchandise at the periphery of the heading. See HQ 960830, HQ 960831 and HQ 963222 (cited above). Containers which are specially shaped or fitted are better suited for organizing and storing merchandise. Customs has stated that although there is no requirement that bags or similar containers of the second part of heading 4202, HTSUSA, be specially shaped or fitted, it is indicative of a 4202, HTSUSA, classification rather than a classification in 6307, HTSUSA. See HQ 960830, HQ 960831 and HQ 963222 (cited above). The wine bottle bags classified under heading 4202, HTSUSA, in HQ 960367 and HQ 963222 (cited above), each had a separate circular shaped piece of fabric which formed the bottom of the bottle bags. Although not explicitly stated in the rulings, such specially shaped or fitted construction weighed in favor of classification under heading 4202, HTSUSA.

We note that one other wine bottle bag classified in heading 4202, HTSUSA, did not have a separate piece of fabric which formed the bottom of the bag. However, we find that the thickness of the velveteen fabric was such that the protective nature of the bag justified classification under heading 4202, HTSUSA. See HQ 960403.

While the “Christmas Wine Bottle Bags” are of a size suitable for presenting a liquor or wine bottle and will be used for this purpose, they are not regarded as specially shaped or fitted. The bags do not have specially shaped bottoms formed from separate pieces of fabric nor do they feature internal fittings to accommodate a bottle. In addition, they are not shaped to the form of a particular bottle and are capable of holding bottles of various dimensions, as well as any number of smaller items. Given our previous conclusion that the wine bottle bags are not for protecting, storing and carrying, combined with the fact that the bags are not specially shaped or fitted, we conclude the wine bags are excluded from 4202, HTSUSA.

Heading 6307, HTSUSA, provides for other textile articles not more specifically provided for elsewhere in the tariff schedule. The EN to heading 6307, HTSUSA, at page 949, state in pertinent part that the provision includes: domestic laundry or shoe bags; stocking, handkerchief or slipper sachets; pajama or nightdress cases; and garment bags other than those of heading 4202, HTSUSA. Drawstring wine bottle bags are similar to exemplars such as laundry bags and shoe bags in that they may take the form of drawstring bags.

The EN to heading 6307, HTSUSA, also states that travel bags and all similar containers of heading 4202, HTSUSA, are excluded from the heading. However, as stated above, the wine bottle bags are not similar containers of heading 4202, HTSUSA, and, thus, are not excluded from heading, 6307, HTSUSA.

We find that the “Christmas Wine Bottle Bags” are similar to the wine bottle bags described as “decorative coverings” classified under heading 6307, HTSUSA. See HQ 960831 and HQ 960830 (cited above). In HQ 960831, the wine bottle bag at issue was a decorative drawstring bag comprised of thin satin woven fabric. The bag did not feature any cushioning, insulation or interior lining. In HQ 960830 (cited above), the wine bottle bag at issue had an exterior surface covered with nylon textile flock and was decorated by a strip of white faux fur sewn around the top circumference of the bag. In both cases, Customs stated that the construction and appearance of the bags as a whole ensured that they would be used as decorative rather than protective packing for the bottles they transport. Furthermore, emphasis was placed on the fact that the bags were principally designed as alternatives to gift wrapping and functioned as an attractive means for presenting their contents. The instant wine bottle bags are similar in that they do not provide added cushioning or insulation and are principally designed as alternatives to gift wrapping. In fact, the instant bags are even more decorative in appearance than the wine bottle bags that were the subject of the prior rulings. The wine bottle bags will not be used as protective packaging or as a convenient method of carrying a bottle of wine. Accordingly, we find that the “Christmas Wine Bottle Bags” are classified under heading 6307, HTSUSA.

HOLDING:

The subject merchandise is classifiable under subheading 6307.90.9989, HTSUSA, which provides for other made up articles, including dress patterns: other: other: other: other: other. The applicable general column one rate of duty is 7 percent ad valorem.

PD C86943 dated May 12, 1998, is hereby revoked in accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division


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