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HQ 964318




October 11, 2001

CLA-2 RR:CR:TE 964318 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500; 4202.92.90; 4202.92.9060

Mr. Thomas F. Trost
Phoenix Intl. Freight Services, Ltd.
4659 World Parkway Circle
St. Louis, MO 63134

RE: PC F81770 Superceded: Tariff classification of various household, storage, travel, and laundry accessories

Dear Mr. Trost:

This is in response to your letter, dated May 1, 2000, on behalf of your client, Whitney Design, Inc., requesting review of Customs pre-classification determination (PC) F81770 which classified various household, storage, travel, and laundry accessories under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). One sample was submitted to this office for examination and is identified as a “microfiber hanging travel bag” (item 06910). A catalogue displaying all the subject articles has also been submitted which pictures personal items stored in the articles at issue. However, the articles are imported empty.

FACTS:

The subject items are identified under the following item numbers: 06900 - Women’s travel gift set; 06904 - Jewelry roll; 06905 - Large carry all; 06906 - Curling iron cover; 06907 - Hair care tote; 06908 - Large tote; 06910 - Hanging travel organizer. Samples were submitted with your request and submitted to Customs Laboratory which determined that the subject items are made of a woven fabric that is coated, covered, or laminated on one surface (exterior) with a black plastic material which is embossed to simulate a woven fabric.

In pre-classification decision, PC F81770, dated February 7, 2000, based on the information provided at that time, the subject items were classified under the HTSUSA, in provisions for items with an exterior surface of textile materials of man made fibers:

06900 – Women’s Travel Gift Set – 4202.92.3031 06904 – Jewelry Roll – 4202.92.9026
06905 – Large Carry All – 4202.92.3031 06906 – Curling Iron Cover – 4202.92.9026 06907 – Hair Care Tote – 4202.92.3031 06908 – Large Tote – 4202.92.3031
06910 – Hanging Travel Bag – 4202.92.3031

At this time, you assert that these items are composed of polyvinyl chloride (“PVC”) and not textile. Thus, you disagree with the classifications of the aforementioned item numbers as set forth in PC F81770 and propose classification under the following provisions of the HTSUSA:

06900 – Women’s Travel Gift Set – 4202.92.4500 06904 – Jewelry Roll – 4202.92.9060
06905 – Large Carry All – 4202.92.4500 06906 – Curling Iron Cover – 4202.92.9060 06907 – Hair Care Tote – 4202.92.4500 06908 – Large Tote – 4202.92.4500
06910 – Hanging Travel Bag – 4202.92.4500

ISSUE:

What is the proper classification for the merchandise?

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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128(August 23, 1989).

Heading 4202, HTSUSA, specifically covers various cases and containers, and 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.

According to the United States Customs Service laboratory analysis, black plastic coating completely forms the exterior surface of the finished articles. Thus, the subject bags shall be regarded as having an outer surface of plastic sheeting in accordance with Chapter 42, additional U.S. Note 2, which states:

For purposes of classifying articles under subheadings 4202.12, 4202.22, 4202.32, 4202.92, articles of textile fabric impregnated, coated, covered or laminated with plastics (whether compact or cellular) shall be regarded as having an outer surface of textile material or of plastic sheeting, depending upon whether and the extent to which the textile constituent or the plastic constituent makes up the exterior surface of the article.

Our determination that the subject articles have an exterior surface of plastic sheeting pursuant to the application of Chapter 42, additional U.S. Note 2, is supported by the recent case of Sarne Handbags Corp. v. United States, 100 F.Supp. 2d 1126, May 5, 2000, wherein the Court of International Trade (“CIT”) found that a handbag whose outer surface contains a plastic component entirely covering a textile, and is relatively thin in comparison to its breadth, it is correctly classified under heading 4202, HTSUSA, as “handbags of sheeting of plastic.” The Court further noted that pursuant to U.S. Note 2, “ when ‘textile fabric [is] impregnated, coated, covered, or laminated with plastics’ and ‘the plastic constituent makes up the exterior surface of the article,’ Congress intended the material on the outer surface of the merchandise to be considered a ‘sheeting of plastics.’...”.

Customs has long held to this interpretation of Chapter 42, additional U.S. Note 2, which is evidenced by Headquarters Ruling (HQ) 087640, dated November 8, 1990, where a bag comprised of woven textile covered with plastic was classified under subheading 4202.92.4500, HTSUSA. The ruling stated that “ an article of subheading 4202.92, HTSUSA, comprised of a plastics and textile combination which is considered to be textile for classification purposes shall have an outer surface of plastic sheeting if the plastic constituent makes up the exterior surface of the article.” See also HQ 089569, dated October 21, 1991, where a bag of woven polyethylene strips (textile) had been coated with a clear plastics material, the article was considered, for classification purposes, to have an outer surface of plastic sheeting and was properly classifiable in subheading 4202.92.4500, HTSUSA. See also HQ 954021, dated November 1, 1993; HQ 960990, dated February 3, 1998; and HQ 961175, dated July 21, 1998.

The Additional U.S. Notes to Chapter 42 state, in relevant part: “1. 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”.

The EN to 4202 indicates that the heading covers only the articles specifically named and similar containers. According to the promotional information we have received, all of the items are designed and intended for travel purposes. The Large Tote (06908) appears to be a spacious, multipurpose bag that has been designed with an expandable top closure for storage of large items and shoulder straps for carrying convenience. As such, we find that the Large Tote (06908), is specifically covered by the “traveling bags” exemplar of 4202, HTSUSA. This is supported by HQ 962364, dated December 8, 1998, where “Tote Bags” of cotton denim fabric described as multipurpose bags designed for carrying various personal effects were classifiable as “travel bags” under subheading 4202.92, HTSUSA.

The Large Carry All (06905) and Hair Care Tote (06907) are smaller, rectangular shaped bags designed with padding and multiple inner pockets to carry various personal grooming items and protect them against breakage. Similarly, the Hanging Travel Bag (06910) contains a light foam padding, metal hanger, and is designed to contain toiletry items in clear plastic zippered pouches. The entire article is designed to fold into itself for portability, fasten shut with a hook and loop style closure, or hang for convenience. Accordingly, these items are more accurately described as “toiletry bags” which are also specifically enumerated in heading 4202, HTSUSA. See HQ 957076, dated December 28, 1995, in which toiletry/cosmetic bags of clear plastic sheeting were classified under subheading 4202.92.4500, HTSUSA, because they were designed for travel and well suited for “prolonged use”.

The appropriate subheading for these articles, which are eo nomine provided for in the second part of heading 4202, HTSUSA, is determined by the constituent material of the outer surface pursuant to Chapter 42, additional U.S. Note 2, discussed above. Thus, we find that the Large Tote (06908), Large Carry All (06905), Hair Care Tote (06907), and Hanging Travel Bag (06910) are each properly classified as “ traveling bags, toiletry bagsOther: With outer surface of sheeting of plasticTravel, sports and similar bags: Other”, under subheading 4202.92.4500, HTSUSA. On this point, it is well established that bags composed of an outer sheeting of plastic over textile, which are designed to carry “personal effects”, are classifiable in subheading 4202.92.4500, HTSUSA. See HQ 087169, dated November 8, 1990; HQ 086983, dated June 14, 1990; HQ 950782, dated April 1, 1992; HQ 954963, dated September 20, 1993; HQ 954966, dated September 20, 1993; HQ 954968, dated September 20, 1993; HQ 960009, dated October 16, 1997.

The article identified as a Jewelry Roll (06904) is not specifically named in heading 4202, HTSUSA. However, the EN to 4202 states: “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 rolls, shoe-cases, brush-cases, etc.” (emphasis supplied). Thus, the subject Jewelry Roll is specifically enumerated in the EN as a “similar container” to the exemplars contained in the second part of 4202, HTSUSA. Furthermore, in HQ 962245, dated June 20, 2000, Customs modified Port Decision (PD) C89581, and classified two jewelry rolls with outer surfaces of vinyl under subheading 4202.92.90, HTSUSA, which provides for “other containers, other, with outer surface of plastic sheeting or of textile materials, other, other, other.”

The Curling Iron Cover (06906) is not specifically provided for in heading 4202, HTSUSA, nor is it set forth in the EN to 4202. However, the EN states that the expression “similar containers” in the first part of the heading (before the semi-colon) includes containers that are specially shaped to contain a particular item with or without accessories. Like the hat boxes, camera accessory cases, cartridge pouches, and knife sheaths, the subject Curling Iron Cover has been specially shaped to contain and transport a single object for personal use. Nevertheless, in order to classify the subject goods as “similar” under 4202, HTSUSA, we must look to factors, which would identify the merchandise as being ejusdem generis (of a similar kind) to those specified in the provision.

In the case of Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867(1994), aff’d. 69 F. 3d 495 (1995), the Court of Appeals stated as follows:

As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.

In classifying goods under the residual provision of “similar containers” of 4202, HTSUSA, the Court of Appeals affirmed the trial court’s decision and found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the containers listed eo nomine in heading 4202, HTSUSA., i.e., “to organize, store, protect and carry various items.”

The intended purpose of the Curling Iron Cover is to organize, store, protect and carry a personal item, i.e., a curling iron, while not in use. Thus, it has met the Totes (supra) rule of ejusdem generis as a similar container to those of 4202, HTSUSA.

Based on the fact that the Curling Iron Cover has an outer surface of plastic sheeting, it is classifiable under subheading 4202.92, HTSUSA. Furthermore, there is sufficient precedent to support classification of the subject Curling Iron Cover as a similar container to those exemplars enumerated in the first part of the heading under subheading 4202.92.9060, HTSUSA. This is illustrated by the following examples in which a variety of containers with an outer surface of plastic sheeting designed to contain a single item while not in use, were classified as other “similar containers” under subheading 4202.92.9060, HTSUSA: an insulated casserole dish caddie bag (HQ 960184, dated September 4, 1997); a watchband display folder (HQ 960887, dated March 10, 1998); an insulated bottle holder for single beverage (HQ 961681, dated September 28, 1998; an insulated baby bottle holder for one bottle (HQ 962343, dated December 10, 1998).

The remaining article, Women’s Travel Gift Set (06900), consists of three items packaged together for retail sale: Jewelry Roll (06904), Curling Iron Cover (06906), and Large Carry All (06905). As we have already determined, if classified separately, the Large Carry All (06905) would be classified as a specifically enumerated exemplar, “toiletry bag”, of subheading 4202.92.4500, HTSUSA. The Jewelry Roll (06904) is classifiable under subheading 4202.92.90, HTSUSA, as ejusdem generis to those containers specifically enumerated in the second part of the heading (after the semi-colon). The Curling Iron Cover (06906) is properly classifiable under subheading 4202.92.9060, HTSUSA,, as ejusdem generis to the exemplars contained in the first part of the heading.

It is our understanding that these items are imported together and are intended to be packaged and sold together as a set. In addition, the three items are prima facie classifiable in two or more subheadings (4202.92.45 and 4202.92.90). Thus, in order to determine the proper classification for the Women’s Travel Gift Pack (06900), we must apply GRI 3 by application of GRI 6, as follows:

When by application of rule 2(b) or for any other reason, 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.

(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.

Subheadings 4202.92.45 and 4202.92.90, HTSUSA, each refer to part only of the items in the set. In accordance with GRI 3(a), one subheading is not more specific. Thus, GRI 3(b) must be applied. The EN to GRI 3(b) states that to meet the criteria of a set put up together for retail sale, articles must:
consist of at least two different articles which are prima facie, classifiable in different headings. ; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking (e.g. in boxes or cases or on boards).

As we have already noted, the articles contained in the Women’s Travel Gift Pack are prima facie classifiable at three different subheadings, i.e, 4202.92.4500, 4202.92.90, and 4202.92.9060. In addition, the bags are designed to be used together during travel to hold personal accessories, grooming and toiletry articles of various sizes and are put up and presented in a box ready for sale as a set to end users. In view of the foregoing, it is our determination that the Women’s Travel Gift Pack meets the definition of a set put up for retail sale. Thus, the goods are classifiable pursuant to GRI 3(b) as if they consisted of the material or component that gives them their essential character.

Recently , there have been several Court decisions on “essential character” for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed, 171 F.3d 1370 (CAFC 1999).

The essential character of this set cannot be determined by comparing each component as it relates to the use of the product. Each of the three articles in the set are co-equal in that they are designed to contain and organize personal articles (curling iron, toiletries, jewelry) for convenience during travel. GRI 3(c) states that “When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.” Based on the foregoing, it is our determination that the Women’s Travel Gift Pack (06900) is classified pursuant to GRI 3(c), under subheading 4202.92.9060, HTSUSA, which is the provision for “Other” containers with outer surface of sheeting of plastic.

In view of the foregoing, PC F81770, dated February 7, 2000, is superceded.

HOLDING:

The subject merchandise identified as, Large Tote (06908), Large Carry All (06905), Hair Care Tote (06907), and Hanging Travel Bag (06910), is correctly classified in subheading 4202.92.4500, HTSUSA, which 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, 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: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” The general column one duty rate is 20 percent ad valorem.

The Jewelry Roll (06904), is correctly classified in subheading 4202.92.90.60, HTSUSA, which 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, 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: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other.” The general column one duty rate is 18.3 percent ad valorem.

The subject merchandise identified as, Curling Iron Cover (06908), and Women’s Travel Gift Set (06900), is correctly classified in subheading 4202.92.9060, HTSUSA, which 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, 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: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, Other: Other.” The general column one duty rate is 18.3 percent ad valorem.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www. Customs.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

John Durant, Director

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