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HQ 963810




January 19, 2001

CLA-2: RR:CR:TE 963810 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Ms. Barbara Y. Wierbicki, Esq.
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: Reconsideration of NY F80622 concerning classification of a shoe bag

Dear Ms. Wierbicki:

This is in response to your request of March 9, 2000, on behalf of your client, Avon Products, Inc., for a reconsideration of New York Ruling Letter (“NY”) F80622, dated December 14, 1999, regarding the classification of a shoe bag under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). In preparing this reply, consideration was also given to your additional August 24, 2000, submission to Customs National Import Specialists in New York.

Upon review, Customs has determined that the NY ruling letter which was issued to your firm properly classified the subject merchandise. The classification for the merchandise is upheld for the reasons set forth below.

FACTS:

On December 14, 1999, Customs issued NY F80622 to your firm for the tariff classification of merchandise described as a “Nylon Fitness Tote Bag,” sample number PP #198300. The bag is a tote bag of 100% nylon, designed to contain clothing and other personal effects during travel. Placed inside the tote bag is another bag which in NY F80622 was described as “a generic drawstring utility bag, commonly known as a ‘stuff bag,’ constructed of 100% nylon.” Both the tote bag and the “stuff bag” were classified as travel bags in subheading 4202.92.3031, HTSUSA. You submitted a request for reconsideration of NY F80622 to the Office of Regulations & Rulings concerning only the classification of the “stuff bag” which you submit is a shoe bag and will hereinafter be referred to as such for ease of reference.

The sample shoe bag under consideration is a drawstring bag designed to contain clothing, shoes, or other personal effects during travel. The sample measures approximately 11 inches in width by 15 inches in height. The bag is constructed of 100 percent nylon and has a heavy braided cord drawstring closure which also serves as double carry handles. The interior of the bag in unlined and non-compartmentalized.

ISSUE:

Whether the subject merchandise is properly classified in heading 4202 or heading 6307 of the HTSUSA?

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 heading 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.

Pouches and bags of textile materials similar to the subject merchandise have been classified in both headings 4202 and 6307, HTSUS, depending upon their construction and the purpose(s) for which they are designed.

Heading 4202, HTSUSA, provides as follows:

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. Thus, this heading encompasses the articles enumerated, as well as containers similar to these articles which are determined to be suitable for travel.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 4202 suggest 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, the EN indicate that the expression “similar containers” indicates articles which must be wholly or mainly composed of the materials specified therein. There is no requirement that the articles be specially shaped or fitted.

Additional U.S. Note 1 to Chapter 42 states:

For the purposes of heading 4202, the expression “travel, sports and similar bags” means goods, other than those falling in subheadings 4202.11 through 4202.39, 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.

The EN to 4202 indicates that the heading covers only the articles specifically named and similar containers. Inasmuch as “shoe bags” are not eo nomine provided for in heading 4202, HTSUSA, we must consider whether or not the goods are classifiable as “similar containers” under 4202, HTSUSA. Thus, we look to factors, which would identify the merchandise as being ejusdem generis (of a similar kind) to those specified in the provision.

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 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. The court found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the enumerated exemplars, i.e., “to organize, store, protect and carry various items.” Heading 4202, HTSUS, in general, provides for containers used to convey personal articles; these “containers” can be anything designed to transport the assorted personal belongings of an individual.

You propose heading 6307, HTSUS, as an alternative classification for the subject merchandise. Heading 6307, HTSUS, provides for other made up articles including dress patterns. The EN to 6307 specifies that the heading covers those made up articles of textile material “which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature” and particularly including: “(5) shoe bags”. We note that the EN excludes (b) “Travel goods and all similar containers of heading 4202” (emphasis supplied).

Comparison of the EN is necessary for classification determination under heading 4202, HTSUS, or 6307, HTSUS. The EN to 4202 states the expression “similar containers” in this second part includes shoe-cases. However, those goods which are referred to in the second part of heading 4202, HTSUS are typically specifically shaped or fitted. Furthermore, the EN to 6307 include "shoe bags" but specifically exclude "travel goods." It is clear from the EN to 4202 and 6307 that "traveling bags" or "similar containers" (including "shoe cases") are distinct from "shoe bags" and should be separately classified. In making this distinction, if the "shoe bags" are designed for travel use they cannot be classified under 6307 because they are "travel goods."

The EN (5) to 6307 specifically lists “shoe bags” as classifiable under the heading, as well as: “domestic laundry bags”, “stocking, handkerchief or slipper sachets”, “pyjama or nightdress cases”, and “similar articles.” All the items listed in EN (5) to 6307 are most commonly intended for domestic use, i.e., to contain personal items for storage in a drawer or closet. Pursuant to the exclusion contained in the EN to 6307, these items are not specifically designed for travel use. They are distinct from the “traveling bags” or “similar containers”, i.e., “shoe cases” of 4202, HTSUS, which are intended for use inside luggage or as a substantial case designed to be used to transport various items.

We do not agree with your claim that the subject merchandise bears no association to the travel and sports bags of heading 4202, HTSUS. As clearly set forth in Additional U.S. Note 1 to chapter 42, the term “travel, sports and similar bags” provides for items designed for carrying clothing and other personal effects during travel. “Personal effects” can be interpreted to mean an infinite number of things including shoes.

Application of Totes and the EN for heading 4202 to the subject merchandise supports the classification therein. The subject merchandise functions as a container which allows for ease of storage and efficient transporting of shoes or other items. The design and durable construction of the subject bag is such that it can be used repeatedly and furthermore, the shoe bag is sold as a supplement to a travel/sports bag and will undoubtedly, provide storage, protection, organization and portability to personal effects, including, but not limited to, shoes, during travel. It is our belief that the subject merchandise is akin to the travel and sports bags of heading 4202, HTSUS, in that it is used to carry or transport other items.

Customs has previously ruled that drawstring textile shoe bags or pouches are classifiable under heading 6307, HTSUSA, as “Other made up articles.” However, these rulings did not involve merchandise specifically intended/marketed for travel purposes. See Headquarters Ruling Letter (HQ) 084257, dated July 18, 1989; HQ 085961, dated March 9, 1990; HQ 086206, dated April 13, 1990; HQ 088411, dated April 23, 1991. In the instant case, the subject shoe pouches are excluded from classification under heading 6307, HTSUSA, because they are designed and marketed as a travel good.

HOLDING:

NY F80622 is hereby upheld.

The subject merchandise is correctly classified in subheading 4202.92.3031, HTSUSA, which provides in part for travel, sports and similar bags, of textile materials, with outer surface of textile materials of man-made fibers. The general column one duty rate is 18.3 percent ad valorem. The textile category number is 670.

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 (Restraint 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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