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HQ 962997




November 24, 2000

CLA-2 RR:CR:TE 962997 SG

CATEGORY: CLASSIFICATION

TARIFF NO.'s: 4202.92.4500; 6402.99.1880

Arlen Epstein, Esq.
Thompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, N.Y. 10036-8901

RE: Classification of child’s tote bag of polyvinyl chloride (PVC) and pair of plastic slippers; GRI 3(b); EN IX to GRI 3(b); tote bag and slippers are normally offered for sale separately; not composite goods and classifiable separately; 6402, HTSUS; 4202 HTSUS

Dear Mr. Epstein:

This is in response to your letter of January 20, 1999, on behalf of your client, Avon Products, Inc., requesting a binding classification ruling on a child’s carrying bag and slippers. A sample was submitted.

FACTS:

The merchandise at issue is an open top carrying bag and a pair of child’s open toe and heel slippers. Both items are said to be imported and sold together, although as now presented, it appears that the items will be subject to repackaging prior to retail sale. It is not clear whether each will be presented on entry put up in common packing.

The carrying bag is made of translucent plastic polyvinyl chloride (PVC) sheeting; it measures 9 inches by 7 ¾ inches by 5 ¾ inches. It is open at the top and has two double material handles. The translucent sheeting has floral cutouts. The bag appears to be a general-purpose tote type bag which could contain a number of items in addition to the personal effects normally carried in a handbag.

The slippers have open toes and heels, “H” band straps with a flower/heart decoration affixed to the top. The bottoms of the slippers are approximately 1-½ inches in height at its highest point. Both the bottom and the “H” band strap are manufactured of a fabric backed foamed plastics material. The slippers appear to be sized for a child.

It is submitted that the slippers and bag are composite goods within the meaning of General Rule of Interpretation (GRI) 3(b), and therefore the two articles are classifiable as an entirety under heading 6402, HTSUS, as the slippers are the component which impart the essential character to the good.

ISSUE:

Are the bag and slippers a composite good classifiable under heading 6402, HTSUS, or are they separately classifiable under headings 6402 and 4202, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is governed by the GRI's. GRI 1 provides that classification shall be determined according to the terms 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's.

Two headings potentially govern classification of the subject merchandise: heading 6402, HTSUS, which provides for footwear with outer soles and uppers of rubber and plastics, and heading 4202, HTSUS, which provides for, in pertinent part, travel, sports and similar bags.

As the samples are potentially classifiable under headings 6402 and 4202, HTSUS, GRI 3 provides the relevant analysis. GRI 3(a) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

"(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

In this instance, headings 6402 and 4202, HTSUS, are equally specific in relation to one another. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b) that reads:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Before applying GRI 3(b), we must determine if the subject garments are composite goods.

COMPOSITE GOODS

Explanatory Note (EN) IX to GRI 3(b) provides:

For purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

EN IX to GRI 3(b) also sets forth two examples of articles regarded as composite goods:

1) Ashtrays consisting of a stand incorporating a removable ash bowl;

2) Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.

The EN to GRI 3(b) include as composite goods components which are attached to one another so as to form a whole, as well as those components which are separable so long as they are "mutually complementary", "form a whole", and would "not normally be offered for sale in separate parts." In determining whether the subject articles meet the definition of "composite good," we will apply the criteria set forth supra to the bag and slippers at issue.

It is obvious that the subject articles are not attached to one another. This fact is not determinative of the articles' status as composite goods and Customs must further examine the merchandise to determine whether the articles are "mutually complementary," "form a whole" and whether the goods would "not normally be offered for sale in separate parts."

With regard to these criteria, this office has not been presented with substantiating evidence that the subject bag and slippers are mutually complementary. The bag is not specially shaped or fitted to accommodate the slippers. It is of a dimension similar to other tote bags and has the capacity to hold the sort of items typically stored or transported by tote or carrying bags (i.e., keys, wallet, crayons, juice boxes, snacks, toys, shoes, etc.). You state that the bag and slippers are mutually complementary to each other. No reason or rationale is given. We do not agree. While these articles may be used together, each article functions independently of the other. The function of the bag as it relates to the slippers is very different from the exemplars of composite goods set forth in the EN to GRI 3(b). The exemplars describe items that have no real function independent of one another. In the instant case, the slippers and bag may be used together, but they also have independent functions and are normally offered to the consumer separately.

We note that the fact that both items may have a similar flower motif does not render these articles composite goods within the meaning of GRI 3(b). The flower design on both items does not render these articles mutually complementary in function to one another. Nor does it make it any less reasonable for these articles to be sold separately from one another.

In support of your claim that the slippers and bag constitute a composite good, you cite New York Ruling B88960, dated September 9, 1997, in which a plastics sandal and a textile bag from China were determined to constitute a composite good classified within the footwear provision. In that case the shoe bag was made of lightweight nylon mesh material with a nylon drawstring closure; the shoe was imported inside the bag; the bag was shipped inside a box with the shoes; and one bag was packed with each pair of shoes. In light of those facts, we found that “the purpose of the bag is for carrying the shoes, which infers that the bag is intended to store the shoes during travel or when they are not in use and would not normally be sold separately from the shoes.” The shoes and bag were found to be adapted to each other, mutually complementary, and that together they formed a whole which would not normally be offered for sale separately. They therefore met the definition of a composite good as defined and applied in the HTSUS.

That is not true of the slippers and bag before us. You have submitted no information on how these items will be packaged, imported, or sold. As presented, it appears the articles will be subject to some form of repackaging prior to retail sale. Therefore, the real issue is whether tote bags and slippers are normally sold together or separately. A visit to several retail shops reveals that tote type bags are typically offered for sale alone. We find this persuasive evidence of the fact that slippers and tote bag are normally sold separately and, on this basis, Customs does not consider the subject merchandise to constitute a composite good for classification purposes. NY B88960 is therefore distinguishable and unpersuasive.

As stated above, tote or carrying bag has an independent market identity from the slippers, it is capable of functioning in a capacity quite separate from being used to carry slippers, it does not serve to complement or complete the slippers, and, most importantly, tote type bags are normally offered for sale separately from slippers or shoes. This is the determinative criterion in the instant case.

Lastly, we will consider whether the subject merchandise may be considered "goods put up in sets for retail sale." EN X to GRI 3(b) provides, in part:

"For purposes of this Rule, the term ‘goods put up in sets for retail sale' shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repackaging.

The slippers and bag are not classified as a set in accordance with GRI 3 because goods put up in sets for retail sale are goods that consist of products or articles put up together to meet a particular need or carry out a particular activity. The bag does not combine with the slippers to accomplish a single activity: the slippers are used for walking; the tote or carrying bag does not enhance that use.

The submitted tote type bag and slippers are therefore neither classifiable as composite goods nor a set in accordance with GRI 3. Slippers and tote bags are normally sold separately and they do not serve to carry out a single activity. Accordingly, the components are to be classified separately. The bag is substantially similar in design, construction, and use as that ruled on in Headquarters Ruling (HQ) 959265, dated April 9, 1999. It is therefore, classifiable under subheading 4202.92.4500, HTSUSA, which provides for, in part, travel, sports and similar bags, with outer surface of plastic sheeting. The slippers are classifiable under subheading 6402.99.1880, HTSUSA, which provides for children’s footwear with outer soles and uppers of plastics.

HOLDING:

The slippers are classifiable under subheading 6402.99.1880, HTSUSA, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) of rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals, or cold or inclement weather): Other: Other: Other: For children”. Goods classifiable under this subheading are currently afforded duty at the general column one rate of 6 percent ad valorem.

The tote or carrying bag is classifiable under subheading 4202.92.4500, HTSUSA, which provides for “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 toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette 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 of sheeting of plastics wholly or mainly covered with such materials or with paper: With outer surface of sheeting of plastic or of textile materials: Travel, sport and similar bags: Other.” The general column one rate of duty is 20 percent ad valorem.

Sincerely,

John Durant, Director

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