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HQ 964339




August 7, 2002

CLA-2 RR:CR:TE 964339 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Ms. Laura Siroka
Deltech Marketing, Inc.
450 Seventh Avenue
New York, New York
10123

RE: Drawstring Bag; Non-Woven Polypropylene Textile Fabric; Deltech Marketing Style No.: BG- 2023; Travel, Sports and Similar Bags; Subheading 4202.92.3031, HTSUSA.

Dear Ms. Siroka:

The purpose of this correspondence is to respond to your request dated July 5, 2000. The correspondence in issue requested, on the behalf of Deltech Marketing, Inc. (Deltech), a binding classification ruling of the merchandise described as a “polypropylene plastic bag.”

This ruling is being issued subsequent to the following: (1) A review of your submission dated July 5, 2000; (2) A review of the single page of marketing literature exhibiting numerous bags and garment carriers; and (3) A review of the sample drawstring bag.

FACTS

The article in issue, identified by Deltech as a “polypropylene plastic bag,” is a drawstring bag. It is composed of non-woven polypropylene textile fabric.

The drawstring bag measures seventeen (17) inches in height and fourteen (14) inches in width. It secures closed by means of a drawstring closure at the top that has two plastic, spring-loaded locking mechanisms. The drawstrings extend from the top of the bag on each side to the bottom where they are tied-off. The drawstrings are designed such that the bag may be carried on the back of the wearer, similar to a backpack, with the wearer’s arms extending through each of the drawstrings. The bag has no lining and no pockets.

The sample is identified as style number: BG- 2023. It is black and is imprinted with “YM” and “YOUNG & MODERN” on the front. The same article in the marketing literature has “HONDA” imprinted on it.

The Customs Service is advised that the country of manufacture is China.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described drawstring bag composed of non-woven polypropylene textile fabric?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the drawstring bag composed of non-woven polypropylene textile fabric, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4202, HTSUS, provides for the classification of:

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, insulated food or beverage 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.

Customs initially notes that heading 4202, HTSUS, does not designate drawstring bags eo nomine, that is by name. Since the tariff schedule does not list “drawstring bags,” the initial issue is whether the article subject to classification consideration is ejusdem generis, that is of the same kind of article, as those listed in the heading.

Customs review of heading 4202, HTSUS, leads it to “traveling bags” designated eo nomine in the second aspect of the heading. The second part of the heading is that part which follows the semicolon. Articles listed in the second half of heading 4202, HTSUS, in order to be classified in heading 4202, HTSUS, must, in addition to being listed in the heading, also be composed of one of the enumerated materials. The Deltech drawstring bag is composed of a man-made textile material, one of the materials of which articles in the second part of heading 4202, HTSUS, must be composed.

Heading 4202, HTSUS, in addition to listing “traveling bags,” follows that enumeration with the phrase “and similar containers.” Employing the phrase “and similar containers” necessitates this office to exercise the ejusdem generis rule of statutory construction. See Avenues in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999). The drawstring bag will be considered a container similar to a traveling bag “if it possesses the essential characteristics or purposes uniting the listed exemplars and does not have a more specific primary purpose that is inconsistent with the listed exemplars.” Avenues in Leather, Supra. at 1244.

The essential characteristics and purposes of the exemplars listed in heading 4202, HTSUS, was addressed by the Court of International Trade in Totes, Inc. v. United States, 865 F. Supp. 867 (Ct. Int’l Trade 1994) aff’d 69 F.3d 495 (Fed. Cir 1995). The court in Totes held that the articles designated eo nomine in heading 4202, HTSUS, are designed to organize, store, protect and carry various items.

“Traveling bags,” as articles designated eo nomine in heading 4202, HTSUS, are defined in Additional U.S. Note 1 of Chapter 42, HTSUSA. Additional U.S. Note 1 provides that “travel, sports and similar bags” are “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.” (Emphasis added). Chapter 42, Additional U.S. Note 1, HTSUS.

It is the decision of this office that the Deltech “drawstring bags” are ejusdem generis with the articles identified by name in heading 4202, HTSUS, and, more specifically, with traveling bags as defined in Additional U.S. Note 1. The Deltech drawstring bags are designed to organize, store, protect and carry clothing and other personal effects during travel. The articles under consideration are of substantial construction to serve the purposes of organization, storage, protection and transportation. See HQ 956719 (July 21, 1994). See contra HQ 955012 (Oct. 28, 1993) (classifying drawstring bags of insubstantial construction in heading 6307, HTSUS). See also Explanatory Note 63.07 (excluded from classification in heading 6307, HTSUS, are “[t]ravel goods (suit-cases, rucksacks, etc.), shopping bags, toilet-cases, etc. and all similar containers of heading 42.02.).

The Customs Service contemplated whether the Deltech drawstring bag possessed characteristics more similar to a “handbag” than a “traveling bag,” but ultimately decided that the drawstring bag was more similar to a traveling bag. The drawstring bag in issue does not possess the features customarily associated with handbags. The drawstring bag does not have pockets or compartments and, although durable enough to meet the Totes requirements, it is not as sturdy as a handbag. See HQ 089575 (Nov. 20, 1991). The drawstring bag, unlike a handbag, is designed and intended to transport a greater variety of items. The Deltech drawstring bag is a multipurpose bag and comports with the holding in Totes and Additional U.S. Note 1 to Chapter 42. See HQ 962364 (Dec. 8, 1998).

Continuing the classification of the Deltech drawstring bag with an outer surface of textile material, the article is classified in subheading 4202.92.3031, HTSUSA. See NY F87587 (June 1, 2000). Subheading 4202.92.3031, HTSUSA, provides for the classification of:

Trunks, suitcasesand similar containers; traveling bagsand similar containers,of textile materials:

Other:
With outer surface of sheeting of plastic or of textile materials:

Travel, sports and similar bags:
With outer surface of textile materials:
Other,

4202.92.3031 Other.

HOLDING

The Deltech Marketing, Inc. drawstring bag composed of non-woven polypropylene textile fabric is classified in subheading 4202.92.3031, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is eighteen and one-tenth (18.1) percent ad valorem.

The textile quota category is 670.

There are no applicable quota/visa requirements for products of World Trade Organization (WTO) member-countries classifiable in this provision. The textile category number above applies to merchandise produced in non-WTO member-countries.

The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest 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 updated weekly and is available for inspection at your local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.

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,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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