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HQ 967324




October 28, 204

CLA-2 RR:CR:TE 967324 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Mr. Joseph Stinson
Liss Global, Inc.
7746 Dungan Road
Philadelphia, PA 19111

RE: Request for reconsideration of classification: NY K86871 and NY K86872; Gift Bag with outer surface of textile

Dear Mr. Stinson:

This is in response to a letter, dated August 4, 2004, on behalf of Liss Global, Inc., requesting reconsideration of Customs New York Ruling Letters (NY) K86871, dated June 15, 2004, and NY K86872, dated June 15, 2004, which classified textile bags under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Customs and Border Protection (CBP) has received a sample bag.

FACTS:

The subject articles are identified as item #937606 (NY K86871) and item #937607 (NY K86872). Each bag is constructed of a plastic coated paper base that is laminated with a woven polyester fabric. The exterior surface of these bags is comprised of the polyester fabric that has been decorated with loose strands of metalized yarn. The bags have double braided cord handles and reinforcing cardboard at the top interior edge and bottom of the bags. The bag identified as item #937606 measures approximately 7.5 inches x 4.5 inches x 9.875 inches. The bag identified as item #937607 measures approximately 10.375 inches x 4.5 inches x 12.75 inches.

In NY K86871 and K86872, the subject articles were classified as containers of subheading 4202.92.3031, HTSUSA. You disagree with this classification and claim that the bags are properly classified as other made up textile articles in subheading 6307.90.9889, HTSUSA.

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, 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.

The EN to 4202 indicates that the heading covers only the articles specifically named and similar containers. However, we note that “gift bags” are not specifically named in heading 4202, HTSUSA. Accordingly, we must determine whether the subject bags are similar to the containers specified in 4202. 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 for the Federal Circuit 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 bags have the capability to organize, store, and protect various small items for conveyance, which is similar to a shopping bag. Furthermore, we have determined that the bags have been designed for prolonged use. The subject bags have exterior surfaces that are wholly covered with woven polyester fabric and have been reinforced with a plastic coated paper. The interior of each bag has been fitted with additional cardboard supports at the base and inside edge of the bag, which allows for durability and prolonged use. The Additional U.S. Note 1, Chapter 42, HTSUSA, states that for the purposes of heading 4202, the expression “travel, sports and similar bags” includes shopping bags of this heading. Thus, it is Customs determination that the subject bags are ejusdem generis to shopping bags of heading 4202, HTSUSA.

The classification of the subject article as ejusdem generis to shopping bags of heading 4202, HTSUSA, is consistent with a prior CBP ruling letter. Directly on point is Headquarters Ruling Letter (HQ) 964450, dated August 8, 2002, wherein CBP classified gift bags of a nonwoven fabric as ejusdem generis to shopping bags of heading 4202, HTSUSA. Specifically, HQ 964450 noted that the bags were of substantial construction and subject to frequent reuse.

Finally, we note that the subject articles are precluded from classification in heading 6307, HTSUSA, pursuant to Note 1(l) contained at Section XI, which covers textiles and textile articles. Specifically, Note 1(l) states that the section does not cover “Articles of textile materials of heading 4201 or 4202.”

In view of the foregoing, we find that NY K86871 and K86872, correctly classified the merchandise as containers in subheading 4202.92.3031, HTSUSA.

HOLDING:

NY K86871, dated June 15, 2004, and NY K86872, dated June 15, 2004, are hereby affirmed.

The subject articles, gift bags identified as item #937606 (NY K86871) and item #937607 (NY K86872), are 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, 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: 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 17.6 percent ad valorem. The textile category is 670.

The designated textile and apparel category may be subdivided into parts. If so, the 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 Textile Status Report for Absolute Quotas, previously available on the CBP Electronic Bulletin Board (CEBB), which is available now on the CBP web site at “www.customs.gov”.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), you should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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