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HQ 964342




September 26, 2000

CLA-2 RR:CR:TE 964342 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Ms. Lynn B. Stan
EMSA
6430 E. Main Street
Reynoldsburg, OH 43068

RE: Classification of a “vest bag” from China; Reconsideration of NY F85467

Dear Ms. Stan:

This is in reply to your letter, on behalf of your client Kent Sporting Goods Company, Inc., dated June 20, 2000, wherein you request reconsideration of New York Ruling (“NY”) F85467, dated April 17, 2000, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of a bag which will be used to package water safety vests for a special promotion. NY F85467 classified the “vest bag” in subheading 4202.92.3031, HTSUSA, which provides for travel, sports and similar bags. Your request of reconsideration was forwarded to U.S. Customs Headquarters and upon review by the Office of Regulations & Rulings, NY F85467 is hereby upheld for the reasons set forth herein.

FACTS:

The subject merchandise has an exterior surface of non-woven man-made textile material with a panel of polyvinyl chloride (PVC) mesh on the top front and side exteriors. The panel of PVC comprises about one fifth of the front and side area. The bag has a zip-around closure which secures the bag and a carry handle is permanently attached to the top. The interior of the bag is unlined and consists of a single compartment with no additional features.

The “vest bag” will be made in China and used by your client as packaging for a special promotion of water safety vests. You state that four to six water safety vests will be packed in the subject merchandise and sold as a unit.

ISSUE:

What is the proper classification for the subject merchandise under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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.

Heading 4202, HTSUSA provides for “Trunks, suitcases, vanity-cases, executive-cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling- bags, toilet bags, rucksacks, handbags, shopping-bags, wallets, purses, map-cases, cigarette-cases, tobacco- pouches, tool bags, sports bags, bottle-cases, jewellery [sic] boxes, powder-boxes, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanised fibre [sic] 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.

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 EN to heading 4202, HTSUSA, state, in pertinent part:

This heading covers only the articles specifically named therein and similar containers.

These containers may be rigid or with a rigid foundation, or soft and without foundation.

The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.). The expression  “similar containers” in this second part includes note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool and jewellery [sic] rolls, shoe-cases, brush-cases, etc

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. 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. Accordingly, the subject merchandise, which is substantially constructed and is designed to carry, protect and organize the water safety vests, is classifiable within heading 4202, HTSUS.

Application of Totes and the EN for heading 4202 to the subject merchandise supports the classification therein. The subject vest bag functions as a container which allows for ease of storage and efficient transporting of water safety vests. The design and durable construction of the subject bag is such that it can be used repeatedly and will serve well to keep safety vests organized and stored on a boat.

You propose heading 6305, HTSUSA, as an alternative classification for the subject merchandise. Heading 6305, HTSUS, provides for sacks and bags used in the packaging of goods. The EN to heading 6305 state: This heading covers textile sacks and bags of a kind normally used for the packing of goods for transport, storage or sale.

These articles, which vary in size and shape, include in particular flexible intermediate bulk containers, coal, grain, flour, potato, coffee or similar sacks, mail bags, and small bags of the kind used for sending samples of merchandise by post. The heading also includes such articles as tea sachets.

It is clear that the articles listed under this heading are of the type used for commercial merchandise being transported or stored for sale, usually in bulk (See also, HQ 088453, dated May 2, 1991, discussing classification of bulk bags, and HQ 089444, dated September 3, 1991, discussing the classification of polypropylene bags used for the conveyance of goods).

In applying the rule of ejusdem generis to determine whether an item is embraced within a particular class, the courts have looked to the articles enumerated within that class to ascertain the characteristics they have in common. Kotake Co., Ltd. v. United States, 58 Cust. Ct. 196, C.D. 2934 (1967). The class of items classified within heading 6305 is that typical of bags which are used in the transport of products and are not typically of durable construction to allow for repeated use or designed to provide prolonged storage.

The instant articles are to be utilized to package a varying number of water safety vests. It is important to note that the subject bags are not being used to transport, store or sell bulk commercial items. Instead, the subject items are used as a packaging for the sale of goods to consumers at retail. The subject bags are to be imported from China and upon entrance into the USA will be filled with safety vests made in the USA. Consequently, the articles at issue are not classifiable under Heading 6305, HTSUSA.

HOLDING:

NY F85467, dated April 17, 2000, is hereby upheld.

The “vest bag” of textile material of man-made fibers used for packaging retail promotion of water safety vests is properly classified in subheading 4202.92.3031, HTSUSA as “Trunks, suitcases, vanity-cases, executive-cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling- bags, toilet bags, rucksacks, handbags, shopping-bags, wallets, purses, map-cases, cigarette-cases, tobacco- pouches, tool bags, sports bags, bottle-cases, jewellery [sic] boxes, powder-boxes, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanised fibre [sic] or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other: Other: Of man-made fibers; Other.” The general column one rate of duty is 18.6 percent ad valorem. The designated textile restraint number is 670.

The “vest bag” of 100 percent plastic sheeting used for packaging retail promotion of water safety vests is properly classified in subheading 4202.92.4500, HTSUSA as “Trunks, suitcases, vanity-cases, executive-cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling- bags, toilet bags, rucksacks, handbags, shopping-bags, wallets, purses, map-cases, cigarette-cases, tobacco- pouches, tool bags, sports bags, bottle-cases, jewellery [sic] boxes, powder-boxes, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanised fibre [sic] or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” The general column one rate of duty is 20 percent ad valorem.

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 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, 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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