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HQ 961996




January 10, 2000

CLA2 RR:CR:TE 961996 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.32.4000

Scott E. Rosenow, Esquire
Stein Shostak Shostak & O’Hara
1620 L Street, N.W. Suite 807
Washington, D.C. 20036-5605

RE: Small Knit Textile Drawstring Bags or Pouches; Substantial Construction; Heading 4202, HTSUSA; Article Normally Carried in the Pocket or Handbag; Not Heading 6307, HTSUSA; Other Made Up Textile Article; Request for Reconsideration; Revocation of NY C87150

Dear Mr. Rosenow:

This letter is in response to your request of June 24, 1998, on behalf of your client, Lin Lyn Trading Ltd., for reconsideration of New York Ruling Letter (NY) C87150, dated May 15, 1998, wherein certain small knit textile drawstring bags were classified under heading 4202, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted with the request.

FACTS:

The merchandise that was the subject of NY C87150, consists of four styles of textile drawstring bags or pouches made in China. The bags are of knit construction of heavy coarse gauge yarn of 100 percent cotton fibers. The bags vary in shape, color and size, ranging from 2" x 2" to 4-1/2" x 4-1/4". Each bag has a drawstring which is interlaced directly through the knitted fabric from which the bags are constructed. Lin Lyn Trading Ltd., intends to import these bags and sell them to Wimpole Street Creations, a nationally known wholesale producer and distributor of hobby and craft project and supplies. Wimpole Street Creations will market these items as components for craft projects to craft and hobby chain stores as well as to craft producers. Copies of Wimpole’s sales literature which illustrate how the drawstring bags will be utilized in finished craft products were also submitted with the request for reconsideration. The importer also admits that the bags may be used as sachets and gift bags.

ISSUE:

What is the proper classification for the subject merchandise?

LAW AND ANALYSIS:

Classification under the 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.

Drawstring bags and pouches of textile materials similar to the subject merchandise have been classified in both headings 4202 and 6307, HTSUSA, depending upon their construction and the purpose(s) for which they are designed. See Headquarters Ruling Letter (HQ) 960206, dated March 17, 1999; HQ 962497, dated January 20, 1999; HQ 960757, dated August 26, 1997; HQ 957473, dated March 6, 1995; HQ 954948, dated October 28, 1993; HQ 953176, dated March 16, 1993; HQ 951838, dated August 11, 1992; HQ 950257, dated November 29, 1991; HQ 089851, dated July 29, 1991; HQ 089759, dated September 6, 1991; HQ 089371, dated September 6, 1991; and HQ 088411, dated April 23, 1991.

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 Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 4202, HTSUSA, state that the expression “similar containers” in the first part of the heading “includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.” With regard to the second part of heading 4202, HTSUSA, the EN indicate that the expression “similar containers” includes “notecases, writingcases, pencases, ticketcases, needlecases, keycases, cigarcases, pipecases, tool and jewellery rolls, shoecases, brushcases, etc.” Thus, it appears that heading 4202, HTSUSA, covers a broad range of containers for carrying personal articles.

In Totes, Incorporated v. United States, 18 Ct. Int’l Trade 919, 865 F. Supp. 867 (1994), aff’d, 69 F.3d 495 (Fed. Cir. 1995), the Court of International Trade held that the essential characteristics and purposes of the heading 4202, HTSUSA, 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, HTSUSA, by virtue of the rule of ejusdem generis, 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.

The subject drawstring pouches possess the characteristics set forth in Totes, Inc. in that they can be used to store, protect and carry various small items. It is apparent from the heavy coarse gauge knit cotton construction that these pouches are substantial in construction (i.e., not flimsy). The small size of the pouches limits carrying capacity to small goods. Accordingly, the heavy coarse gauge knit cotton construction provides cushioning and protection given the nature of contents which they will carry. The drawstrings allow the bags to be securely closed and the contents of the bags will not easily spill. Examination of the subject drawstring bags establishes that they are constructed of material sufficiently durable for continued use. Although the interiors of the pouches are featureless, it is not determinative of the classification in this case. 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 a factor which weighs in favor of classification under heading 4202, HTSUSA. See HQ 960830, dated July 21, 1998 and HQ 960831, dated January 26, 1998. However, in certain cases, if a bag has been determined to be for protecting, storing and carrying, the lack of special shape or fittings will not preclude classification under 4202, HTSUSA. See HQ 963393, dated October 19, 1999. Based on the protective qualities imparted by the thick knit construction, we find that the lack of special shape or fittings does not preclude classification under heading 4202, HTSUSA, in this case.

Furthermore, we note that “purses” are an eo nomine exemplar of heading 4202, HTSUSA. The EN to subheadings 4202.31, 4202.32, and 4202.39, HTSUSA, states that the subheading which provides for articles of a kind normally carried in the pocket or in the handbag includes spectacle cases, note-cases (bill-folds), wallets, purses, key-cases, cigarette-cases, cigar-cases, pipe-cases and tobacco-pouches. Given the fact that these listed items are small items normally carried in the handbag or pocket, it appears that the term “purse” refers to items commonly known in the United States as coin purses or similar articles. The subject drawstring pouches resemble small coin purses and are therefore classifiable under subheading 4202.32, HTSUSA.

Heading 6307, HTSUSA, covers other made up textile articles, including dress patterns. The EN to heading 6307, HTSUSA, indicate that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. The EN states that the heading excludes, among other goods, travel goods (suitcases, rucksacks, etc.), shoppingbags, toiletcases, etc., and all similar containers of heading 4202, HTSUSA.

Recently, in HQ 960206, dated March 17, 1999, Customs classified similar sized textile pouches under heading 6307, HTSUSA. The pouches were constructed of 100 percent knit cotton and featured a flap which folded over the front. Unlike the present pouches, it was apparent from the construction that the pouches would provide little in the way of protection or portability. The constituent fabric was flimsy and did not provide protection to the contents. Furthermore, the flap did not remain closed and the contents easily spilled out. A review of the sample in that case confirms that the knit fabric was much thinner than the instant pouches. In HQ 962497, dated January 20, 1999, Customs examined a slightly larger textile drawstring pouch. The pouch was constructed of thin satin polyester woven fabric. In classifying the pouch under 6307, HTSUSA, Customs explained that the stitching which joined the main panels was very weak and allowed the panels to be pulled apart with minimal stress applied. Examination of the instant drawstring bags establishes that they are of substantial construction and provide protection to their contents. Applying the principles derived from the mentioned cases, we find that the small knit textile drawstring bags in the instant case are distinguishable from the drawstring bags classified in heading 6307, HTSUSA, and are more appropriately classified within heading 4202, HTSUSA.

In your submission you highlight that HQ 960886, dated January 26, 1998, states that pouches classifiable in heading 4202, HTSUSA, must be constructed of materials sufficiently durable to permit repeated or extensive use as carrying and/or storing articles. We note that your submission also acknowledges that the ruling stated that “some,” not all, must also be specially shaped or fitted. Accordingly, some pouches which are not specially shaped or fitted may be classified under heading 4202, HTSUSA. In HQ 960886, Customs found that the bag at issue was both not specially shaped or fitted nor was it constructed of materials durable enough for continued use for general transport and travel. Thus, the bag was classified under heading 6307, HTSUSA. The bag was made of a sheer nylon fabric and a review of the sample confirms that the bag was very thin and offered no protection to its contents. Since we have determined that the instant pouches are substantial in construction, HQ 960886 is distinguishable.

Your ruling also cites to HQ 956234, dated November 14, 1994, and HQ 960757, dated August 26, 1997, which classified textile pouches under 6307, HTSUSA. In both cases, the textile pouches were also determined to be of insubstantial construction and not specially shaped or fitted. Thus, those cases are not considered controlling in this instance.

It is clear that if a drawstring pouch is both of insubstantial construction and not specially shaped or fitted it will be classified under heading 6307, HTSUSA. It is also clear that if a drawstring pouch is both of substantial construction and specially shaped or fitted it will be classified under heading 4202, HTSUSA. However, there appears to be a great deal of confusion over how to classify a drawstring pouch if it is only either of insubstantial construction or not specially shaped or fitted. This ruling serves to clarify that if a drawstring pouch is of substantial construction, the mere fact that it is not specially shaped or fitted will not exclude the article from classification under heading 4202, HTSUSA. We are also cognizant of the confusion surrounding the determination as to what is “substantial” construction. Although substantiality will have to be decided on a case-by-case basis, this ruling indicates that drawstring pouches of thick construction will be considered to be of “substantial” construction.

Although the articles are advertised and ultimately sold to the public for use in making craft goods, the articles in the condition as imported are drawstring bags or pouches. We note that many articles of commerce are utilized in the making of craft goods, however, the basic article has its own identity and purpose. In the instant case, it is that of a drawstring pouch.

HOLDING:

NY C87150 is affirmed.

The textile drawstring bags are classified in subheading 4202.32.4000, HTSUSA, which provides for articles of a kind normally carried in the pocket or in the handbag, with outer surface of textile materials, of vegetable fibers and not of pile or tufted construction, of cotton. The general column one duty rate is 6.7 percent ad valorem in the year 2000. The drawstring bags fall within textile category designation 369.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restrain Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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