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HQ 964428




November 21, 2000

CLA-2 RR:CR:TE 964428 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Mr. Michael Smerling
L.C. Industries, Inc.
1650 W. Irving Park Road
Chicago, IL 60613

RE: Revocation of HQ 950281; classification of shoe protector bags

Dear Mr. Smerling:

This is in regard to Headquarters Ruling Letter (HQ) 950281 issued to you on February 3, 1993, by this office in reply to your request for a tariff classification ruling of shoe protector bags. We have reviewed this ruling and determined that the classification provided for this merchandise is incorrect. This ruling revokes HQ 950281 by providing the correct classification for the shoe protector bags under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation was published in the Customs Bulletin of October 4, 2000, Volume 34 , Number 40 . One comment was received in response to the proposed revocation.

FACTS:

The commentor opposes the proposed revocation contained in Headquarters Ruling (HQ) 964428, and asserts that the description of the subject merchandise in the proposed ruling is inadequate for importers and others to determine whether the bags they import are subject to the proposed change in classification. The commentor further asserts that the proposed classification of shoe protector bags in heading 4202, HTSUSA, is wrong because all shoe bags are classified in heading 6307, HTSUSA. The commentor states that EN (5) to heading 6307 specifically covers “shoe bags” even when the article is intended for travel. The commentor supports this assertion by reference to EN (6) to heading 6307 which covers “Garment bags”. The commentor finally asserts that because the subject bags are not used to organize or carry footwear, neither the Totes Inc. v. United States, 18 CIT 919 (1994), aff’d, 69 F.3d 495 (Fed. Cir. 1995) decision, nor the case of Jewelpak Corp v. United States, 97 F.Supp. 2nd 1192 (CIT 2000) supports the proposed classification in heading 4202, HTSUSA.

The subject shoe protector bags consist of two individual drawstring bags which have been designed to store, protect, clean, and polish shoes during travel. In New York Ruling (NY) 858166, dated November 5, 1990, the subject shoe protector bags were classified as “travel sports and similar bags” under subheading 4202.92.3030, HTSUS. In this ruling, it was noted that “The items at issue are designed to protect one’s shoes while traveling as well as a cleaning or polishing cloth.” The subject items are constructed of woven polyester textile material, unlined, and measure approximately 7 inches in width x 13 inches in length. They are closed by means of a cotton rope-like drawstring closure. Furthermore, these shoe protector bags are not imported with footwear.

In HQ 950281 Customs found the subject goods classifiable as “Other made up articles” within subheading 6307.90.9986, Harmonized Tariff Schedule of the United States.

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 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. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

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)“Domestic shoe bags.” However, we note that the EN excludes: (b) “Travel goods and all similar containers of heading 4202” (emphasis supplied). In the instant case, the subject shoe bags are excluded from classification under heading 6307, HTSUSA, because they are designed as a travel good. Although EN (6) to heading 6307 does specify that “garment bags” are covered by the heading, the EN further notes that these are the “portable wardrobes” which are not covered by heading 4202, i.e., not designed as a travel bag or similar container. Furthermore, EN (5) to 6307 specifies that only “domestic” shoe bags are covered by the heading which means that they are intended for storage within one’s home and not travel purposes.

Customs has previously ruled that drawstring textile shoe bags or pouches are classifiable under heading 6307, HTSUSA, as “Other made up articles.” 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. However, these rulings did not involve merchandise specifically intended/marketed for travel purposes. HQ 084257 involved the classification of textile drawstring shoe bags imported for sale with golf shoes as “Other made up articles” under heading 6307, HTSUSA. HQ 086206 also classified a textile drawstring shoe pouch imported with slippers as “Other made up articles” under heading 6307, HTSUSA. In HQ 085961 and 088411, each ruling specifically notes that the textile drawstring shoe bag/pouch is not designed for travel and is therefore classifiable as “Other made up articles” under heading 6307, HTSUSA, rather than as “traveling bags” or “similar containers” of 4202, HTSUSA. More recently, in HQ 964196, dated, August 18, 2000, it was held that a chamois flannel drawstring shoe bag intended for sale with new shoes is properly classifiable in heading 6307, HTSUSA, because it is not intended for travel use.

Inasmuch as “domestic shoe bags” are specifically enumerated in the exemplars to EN 6307, we must have some clear evidence with which to exclude shoe bags as “travel goods” precluded from classification in 6307. Absent this type of evidence, e.g., that the article is designed, marketed, and intended for travel use, it will be presumed that certain textile drawstring shoe bags/pouches are for domestic use. In the instant case, the subject shoe bags are designed to “protect one’s shoes while traveling as well as a cleaning or polishing cloth.” Thus, they are “travel goods” and precluded from classification in heading 6307, HTSUSA.

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.

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. While “shoe bags” are not specifically named in heading 4202, HTSUSA, the subject bags are designed for travel. Accordingly, they are similar to the travel bags specified in 4202. However, 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 subject merchandise is designed to store and protect shoes during travel. In view of the fact that the shoe protector bags will contain individual shoes while in a travel bag, they will also serve to organize and carry these shoes when placed among the other personal effects that one packs for travel. As such, in applying the criteria from the Totes case (supra) the travel shoe bags are classifiable under 4202, HTSUSA, because they share with the containers listed eo nomine, the essential characteristics of organizing, storing, protecting, and carrying shoes while traveling

Three recent Headquarters Rulings HQ 964197, HQ 964198, HQ 964353, each dated August 18, 2000, provide the basis for the subject revocation. All three rulings classified drawstring polar fleece shoe pouches, designed to store and protect shoes during travel, as “similar containers” under subheading 4202.92.3031, HTSUSA The polar fleece shoe pouches were specifically designed for organizing, storing, protecting and carrying shoes, thus satisfying the Totes (supra) criteria for the rule of ejusdem generis under 4202, HTSUSA. Since the subject shoe bags are also a textile drawstring type bag designed to organize, store, protect, and carry shoes during travel, it was determined that the subject ruling, HQ 950281, must be revoked and the merchandise properly classified under heading 4202, HTSUSA.

HOLDING:

HQ 950281 is hereby revoked.

The subject merchandise is correctly classified in subheading, 4202.92.3031, 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: With outer surface of textile materials: Other, Other: Of man-made fibers: Other.” The general column one duty rate is 18.6 percent ad valorem. The textile category 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 you check, close to the time of shipment, the Status on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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 the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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