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HQ H004184




July 2, 2007

CLA-2: OT:RR:CTF:TCM H004184 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.91.0030; 4202.21.9000

Port Director
U.S. Customs and Border Protection
Port of Jacksonville
2831 Talleyrand Avenue
Jacksonville, FL 32206

RE: Application for Further Review of Protest 1803-06-100017

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 1803-06-100017, filed by McGuire Woods, LLP, on behalf of its client Coach Services Inc. The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of tote bags under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

On September 21, 2004, protestant entered the merchandise subject to this protest in subheading 4202.91.0030, 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 leather, of composition leather or of patent leather, Travel, sports and similar bags.” The merchandise was liquidated on May 12, 2006 in subheading 4202.21.9000, 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: Handbags, whether or not with shoulder strap, including those without handle: With outer surface of leather, of composition leather or of patent leather: Other: Valued over $20 each.”

On July 21, 2006, protestant filed a protest and application for further review against the classification and liquidation of the merchandise in subheading 4202.21.9000, HTSUSA. Protestant’s AFR request was approved on November 27, 2006. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

In support of protestant’s application for further review, protestant alleges that the protest involves questions of fact and law, which have not been ruled upon by Customs and Border Protection (CBP) or by the courts and that the decision is inconsistent with court decisions and Headquarters Ruling Letters (HQ) 082271, dated December 1, 1986; 950708, dated December 24, 1991 and; 961849, dated June 5, 1998. See 19 C.F.R. 174.24(a) and (b). Further review is warranted pursuant to 19 C.F.R. §§174.24(a) and 174.25.

In issuing this decision, consideration was also given to the conference held between protestant and members of my staff on June 19, 2006.

FACTS:

The merchandise at issue is two tote bags identified as Style No.’s. 1433 and 9749 with outer surfaces of leather and featuring ring clips for securing an accessory or key fob. Style No. 1433 measures 14.5” in length, 10.75” in height and 3.9” in width. It features an open top with a single dog leash closure, handles, an interior zippered sleeve, two interior open pockets and two exterior side pockets with turnlock closures. Style No. 9749 measures approximately 13.5” in length, 9.3” in height and 5.5” in width. Style No. 9749 features handles, two exterior pockets, one with an open patch pocket and magnetic closure and one with a zippered sleeve, and two internal zippered sleeves. The tote bag is closed by means of two straps on either end that are secured by turnlocks. The top is not completely closed when the two straps are engaged.

ISSUE:

Whether the tote bags are classified in subheading 4202.21.9000, HTSUSA, as handbags or in subheading 4202.91.0030, HTSUSA, as travel sports or similar bags.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In support of the application for further review, protestant argues that the dimensions of the tote bags, lack of compartmentalization and ability to easily carry food and/or clothing place them outside the handbag category.

Among other articles, heading 4202, HTSUSA, covers travel bags, toiletry bags, handbags, and similar containers. Subheading 4202.91, HTSUSA, provides in part for travel, sports and similar bags. Additional U.S. Note 1 to chapter 42, HTSUSA, states:

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, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers.

Subheadings 4202.21 through 4202.29, HTSUSA, provide for handbags. The term "handbag" has been defined as follows:

Essential Terms of Fashion: A Collection of Definitions, Charlotte M. Calasibetta, Fairchild Publications, 1986: Accessory carried primarily by women and girls to hold such items as money, credit cards, and cosmetics.

The Fashion Dictionary, Mary Brooks Picken, Funk and Wagnalls, 1973: Soft or rigid bag carried in hand or on arm. Size, shape, handle, etc., depend on fashion. Used by women as container for money and pocket-sized accessories.

Webster's New Collegiate Dictionary, G & C Merriam Co., 1977: 1. [T]raveling bag; 2. [A] woman's bag held in the hand or hung from a shoulder strap and used for carrying small personal articles and money.

Webster's New World Dictionary, Third College Edition, Simon & Schuster, Inc., 1988: A bag, usually of leather or cloth, held in the hand or hung by a strap from the arm or shoulder and used, by women, to carry money, keys, and personal effects.

A review of the above-cited definitions of "handbag" reveals that each lexicographic source describes a bag used by women that is designed to carry money, credit cards, keys, and small or pocket-sized personal effects (e.g., a hairbrush, cosmetics, etc.).

In HQ 957917, dated July 7, 1995, CBP classified certain “tote” bags as travel, sports and similar bags within the meaning of Additional U.S. Note 1, Chapter 42, HTSUSA. The bags in that ruling were made from coarse, cotton canvas and were often printed with company logos or promotional or advertising information. Two styles had single snap closures; the rest had no means of closure. The bags had no pockets and were not lined or reinforced. Based on those characteristics, we found it unlikely that the bags were used in a manner similar to a women's handbag. We further found that the canvas tote bags were multipurpose bags used to carry any number of sundry articles, such as food, books and/or clothing.

Another ruling in which CBP classified a “tote” under subheading 4202.92, as a travel bag is HQ 955515, dated May 5, 1994. In that ruling, we held that tote bags are generally used to transport from place to place personal belongings, including clothing. We said “transport could be local, such as between home and office, or extended, as when clothing and/or other personal belongings are packed in a tote bag for a picnic, day at the beach, weekend trip or the like.” The bag in that case measured 12 inches by 14.75 inches by 4 inches. The upper portion was made of clear plastic and the bottom was made of leather. It also had leather covered handles. The bag was not lined and had no pockets.

In HQ 962364, dated December 8, 1998, we classified three separate bags with outer surfaces of cotton and textile carrying handles. Each bag measured approximately 9 inches in height by 11-1/2 inches in width, and had gussets allowing expansion to approximately 3 inches in depth. Two of the bags had one zippered central compartment, no lining, and no additional pockets, and one of the bags had an open top, central compartment and a flat pocket attached to its interior lining. We found that none of the bags was designed or intended to be used as a container for items normally carried in a woman’s handbag, and that all three styles were multipurpose bags for carrying various personal effects other than or in addition to, those normally carried in a woman’s handbag. The bags were classified as travel bags in subheading 4202.92.1500, HTSUSA.

In HQ 963573, dated April 8, 2002, CBP reclassified a bag identified as "Garden Party." The bag had an outer surface composed of 100 percent polyester textile material. The bag measured approximately 15 inches by 10-1/2 inches by 4 inches, had one zippered central compartment, one zippered pocket sewn into the lining, and two carrying handles that were composed of the same material as the outer surface. Based on the dimensions and features of the bag that indicated that the bag was a multipurpose "tote" for carrying various personal effects other than, or in addition to, those normally carried in a woman’s handbag, the bag was classified in subheading 4202.92.3031, HTSUSA.

CBP has also classified bags referred to as “totes” under subheading 4202.22, as handbags. The term "handbags" includes pocket books, purses, shoulder bags, clutch bags, and similar articles customarily carried by women or girls, but not including luggage, flat goods or shopping bags. Tote bags are those bags that are larger than handbags. They are substantially constructed and designed to contain various items including clothing and personal effects while traveling, and usually have at least one side which exceeds 12 inches in length. HQ 082271, dated December 1, 1988.

In HQ 950708, issued December 24, 1991, we observed judicial guidance as to the attributes of tote bags and women's handbags. We noted that certain tote bags which had no linings or reinforcements, no pockets, no closures (or only single snap closures), provided little protection for their contents and were unlikely to be used in a manner similar to a woman's handbag. We stated that such tote bags were used as multipurpose bags to carry any number of sundry articles, such as food, books, and/or clothing. Since the bags did not fit the terms of subheadings 4202.11 through 4202.39, but were a type of bag used to carry clothing and other personal effects during travel, they were considered to be travel, sports and similar bags within the meaning of Additional U.S. Note 1 to chapter 42, HTSUS. See also HQ 951113, issued May 19, 1992, affirming HQ 950708.

In HQ 955552, dated August 15, 1994, CBP classified a pink lady’s shoulder bag as a handbag under subheading 4202.22, HTSUSA. The bag measured approximately 14 inches by 9½ inches with a tapered gusset two inches wide at the top and four inches wide at the bottom. The bag had two shoulder straps approximately 26 inches in length and was divided into two separate compartments, each with a zipper. The interior of the bag was lined and the bottom and corners were reinforced. We held that the bag was not a multipurpose bag used to carry a number of articles such as food, books, or clothing, and that it was not suitable for travel or shopping. While the bag could conceivably have been employed for some limited use as a sports bag, we stated that the primary purpose of the bag was as a traditional woman's handbag. Its design and construction, notably the shoulder straps, reinforcement, linings, inside zipper pocket, style of compartmentalization and zipper closure were all strongly indicative of a bag which is used normally by women and girls to carry personal items on a daily basis.

In HQ 961849, dated June 5, 1998, CBP classified a women’s “tote” bag under subheading 4202.22, as a handbag. That bag measured approximately 11½ inches by 10 inches by 3 inches. It had an outer surface of 100 percent nylon woven fabric and was lined with woven fabric of man-made fibers. It also had two leather carrying straps. The interior featured a large zippered central compartment which divided the bag’s interior and created three separate, full-sized compartments, two of which were open at the top and without closures. It also had a smaller zippered pocket within one of the interior sides. In that ruling, we found that the bag was designed, constructed and intended to be used as a woman’s handbag, not as a tote or shopping bag. Again, its dimensions, lining, zippered pockets, and manner of compartmentalization indicated its purpose to contain certain items normally carried in a woman’s handbag, such as money, keys, glasses, etc. Moreover, the bag had insufficient additional capacity for use as a multipurpose carrier of any number of sundry articles (such as food, books, and/or clothing).

With respect to style 1433, we find that despite the lining and interior pockets the bag’s dimensions and lack of any top closure that will protect and secure contents such as spectacles, keys, and money indicate that it is a multipurpose bag for carrying various personal effects other than, or in addition to, those normally carried in a woman's handbag. This bag is classified as a travel bag and not as a handbag.

However, style 9749 is not a multipurpose bag used to carry a number of articles such as food, books, or clothing, and is not suitable for travel or shopping. While the bag could conceivably be employed for some limited use as a travel or shopping bag, the primary purpose of the bag is as a traditional woman's handbag. Its design and construction, notably the reinforcement, linings, inside zipper pocket, style of compartmentalization and closure strongly indicate that it is a bag which is used normally by women and girls to carry personal items on a daily basis.

HOLDING:

Protest number 1803-06-100017 is allowed in part and denied in part. Style 1433 is classified in heading 4202, HTSUSA. It is provided for in subheading 4202.91.0030, 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 leather, of composition leather or of patent leather, Travel, sports and similar bags.” The rate of duty at the time of entry was 4.5% ad valorem.

Style 9749 is classified in heading 4202, HTSUSA. It is provided for in subheading 4202.21.9000, 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: Handbags, whether or not with shoulder strap, including those without handle: With outer surface of leather, of composition leather or of patent leather: Valued over $20 each.” The rate of duty at the time of entry was 9% ad valorem.

In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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