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HQ W968454




July 10, 2007

CLA-2 OT:RR:CTF:TCM W968454 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.22.4500

Melissa Fox
Barthco International, Inc.
5101 S. Broad Street
Philadelphia, PA 19112-1404

RE: Request for Reconsideration of New York Ruling Letter (NY) M84931; Classification of a Hand Bag; NY M84931 modified

Dear Ms. Fox:

This is in reply to a letter you submitted, dated September 13, 2006, on behalf of Nine West, Inc., requesting reconsideration of New York Ruling (NY) M84931, dated August 1, 2006, insofar as it concerned classification of a polyvinylchloride (PVC) bag. You submitted a sample to aid us in our determination. For the following reasons, this ruling modifies NY M84931.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S. C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY M84931, dated August 1, 2006, as described below, was published in the Customs Bulletin, Volume 41, Number 8, on February 14, 2007. U.S. Customs and Border Protection (CBP) received four comments during the notice and comment period that closed on March 16, 2007.

FACTS:

In NY M84931, CBP classified the merchandise at issue in heading 4202.92.1500, HTSUSA, which provides for travel, sports and similar bags, with outer surface of textile materials, of vegetable fibers and not of pile or tufted construction, of cotton. The merchandise under consideration is a bag, Style Number N-0041203NW, made in China and manufactured of polyvinylchloride (PVC) with an exterior surface of 100% cotton openwork knit fabric that allows the PVC to be visible. The bag features a thick silver chain with a narrow textile fabric woven through openings in the top two inches of the body of the bag. Two silver plated rings connect the shoulder strap to the bag. At its widest point the bag measures 13.5 inches by 8.25 inches by 4 inches in depth, excluding the shoulder strap. The width of the bag decreases from the bottom to the top, with the width of the opening of the bag only measuring 10.5 inches. The depth allowance also narrows from the bottom of the bag to the top. At the bottom of the bag the side panels measure four inches across, however these panels measure only 2 ¾ inches just below the two inch PVC band at the top of the bag. The shoulder strap adds 11 inches in height. In addition to the shoulder strap, the bag features one zippered interior compartment and an interior band with a magnetic closure. The zippered interior compartment features a “Nine West” label.

The merchandise at issue is pictured below:

ISSUE:

Are the bags under consideration classifiable in subheading 4202.22, HTSUSA, as handbags or under subheading 4202.92, HTSUSA, as travel, sports and similar bags?

LAW AND ANALYSIS:

Classification under the 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 relevant 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 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.

Heading 4202, HTSUSA, encompasses the following articles:

Trunks, suitcases, vanity cases, attaché 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.

In HQ 957917, dated July 7, 1995, Customs (now CBP) cited Adolco Trading Co. v. United States, 71 Cust. Ct. 145, C.D. 4487 (1973), which held that tote bags were described in broad terms. The court stated:

The evidence establishes that . . . the term tote or tote bag is used in the trade to cover various types of carry bags, including shopping bags, and bags which may be luggage . . . and others which may be handbags. Thus the fact that an article may be bought, sold or referred to as a tote or tote bag does not establish that it is a handbag, as defined in the tariff schedules....

In your opinion, the bag at issue, is more appropriately classified as a handbag under 4202.22.4500, HTSUSA, than the provision for travel, sports, and similar bags.   

The provision for travel, sports and similar bags is defined by Additional U.S. Note 1, Chapter 42, HTSUSA, as follows:

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 used 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.

In HQ 957917, supra, CBP classified certain “tote” bags as travel, sport 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. See also HQ 085327, September 20, 1989 (holding that a “tote” is classified under subheading 4202.92, HTSUSA, because the bag is larger than a handbag, substantially constructed and designed to contain various items including clothing and personal effects while traveling).

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.

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 does not include luggage, flat goods or shopping bags. Tote bags are those bags that are larger than handbags. HQ 961358, dated January 20, 1999. 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. Tote bags generally have no lining, reinforcements, pockets, or closures (or only single snap closures), provide little protection for their contents and are unlikely to be used in a manner similar to a woman’s handbag. HQ 950708, December 24, 1991; 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. The measurements of the handbag refute one commenter’s assertion that any bag with a measurement over 12 inches cannot be classified as a handbag.

In another ruling, 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 topped 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).

In a more recent ruling, HQ 961358, dated January 20, 1999, CBP classified two styles of bags as women’s or girls’ handbags. In HQ 961358, there were two bags at issue: Style A970669, measuring approximately 11 inches by 8 inches by 3½ inches and Style A970709, measuring approximately 9 inches by 6 inches by 3 inches. Both bags featured the following characteristics:

A) Textile lined undivided interior.

B) Interior sidewall zippered pocket.

C) Top metal snap closure.

D) Self material shoulder straps.

E) Exterior pocket without closure.

F) Metal emblem on exterior “COLLECTION NEW YORK”.     

G) Outer surface is a textile backed PVC sheeting. PVC is embossed to imitate a vinyl fabric.

In HQ 961358, we held that the bags did not have sufficient capacity for use as a multipurpose bag for carrying books, clothing, etc. Furthermore, the bags are lined and, although they do not have individual compartments, they have zippered pockets within the interior and a pocket on the exterior without a closure. The bags also have a snap closure. They are sufficient to carry keys, a wallet, sunglasses and similar articles generally carried in a woman’s handbag. Thus, CBP found that the bags were classified as handbags under subheading 4202.22.1500, HTSUSA.

In HQ 961358, we stated that characteristics A through F above do not establish that the bags are handbags. However, they are relevant factors that CBP considers when classifying handbags as well as travel, sports and similar bags.

As noted above, CBP received four comments in response to the proposed modification of NY M84931, dated August 1, 2006. Two commenters argue that the presence of an undivided interior does not support classification as a handbag. While compartmentalization of a bag is one of the many factors used to determine whether or not it is a handbag, it is not determinative. The analysis considers many factors including whether or not the bag is lined, has a zippered interior pocket, a means of closure, shoulder straps and whether the bag provides protection for its contents and is therefore likely to be used in a manner similar to a women’s handbag. HQ 961358, dated January 20, 1999, is one ruling in which we classified two styles of bags without individualized compartments as handbags in 4202.22, HTSUSA.

Relying on the analysis in HQ 950708, one commenter argues that the absence of a secure closure is an indication that the bag at issue is not classified as a handbag. The tote bags at issue in HQ 950708, dated December 24, 1991 are significantly distinguishable from the subject merchandise. The bags in HQ 950708 are made from cotton canvas and are often printed with company logos or advertising information. They have no pockets, and are not lined or reinforced. Since they provide little protection for the items they may contain it is unlikely that they are used in a manner similar to a woman’s handbag. In contrast, the subject merchandise provides ample protection for the items it might contain. It is made of polyvinyl chloride, has a reinforced bottom and a lining. The magnetic closure combined with the gathered opening provides ample protection for the contents of a woman’s handbag.

Commenters focused primarily on the size of the bag at issue. One commenter argues that “bags of such size have routinely been treated as too large to carry only small personal articles typically associated with handbags.” Another commenter also states that the subject bag has the capacity to carry a handbag plus other articles such as a pair of shoes or work files. Yet another commenter compared the cubic capacity of the subject merchandise to the cubic capacity of other bags in previous CBP rulings and argued that the cubic capacity of the subject merchandise was larger than some bags that had been classified as totes. Finally at least two of the commenters argued that bags that have at least one side, which exceeds 12 inches in length, have been almost uniformly disqualified from classification as handbags, because they have additional capacity to carry items that do not ordinarily fit within a woman’s handbag.

Due to the focus on the dimensions of the bag, we reexamined and clarified the description of the bag which is mentioned in the “facts” portion of this ruling. In addition, we have found several rulings which refute the argument that bags which have one side exceeding 12” in length are disqualified from classification as handbags. See HQ 955552, dated August 15, 1994 and HQ 087537, dated October 2, 1990.

Examination of the digital picture reveals that the bag at issue could not contain a handbag and a pair of shoes or work files. Considering the revised description of the bag, we do not find that its size is too large to be classified as a handbag. Visual examination of the bag reveals that it has insufficient capacity for use as a multipurpose carrier of any number of sundry articles (such as food, books or clothing). Although the width of the bag is greater than twelve inches at its widest point, the bag does not have additional capacity to carry items that do not ordinarily fit within a woman’s handbag. The fact that the bag’s dimensions decrease both in depth and width from the bottom to the top prevent the opening of the bag from accommodating larger items than those that would generally fit into a woman’s handbag.

In the instant case, the bag’s design and construction, that is the shoulder strap, reinforcement, linings, inside zippered pocket, textile lining and top metal snap closure are all strongly indicative of a bag which is used normally by women and girls to carry personal items on a daily basis. Accordingly, the bag at issue, Style N-0041203NW, is properly classified as a handbag under subheading 4202.22.4500, HTSUSA.

HOLDING:

Style number N-0041203NW, manufactured of polyvinylchloride (PVC) with an exterior surface of 100% cotton openwork knit fabric, which features a shoulder strap, one zippered interior compartment and a magnetic closure is properly classifiable under subheading 4202.22.4500, HTSUSA, which provides for “Handbags, whether or not with shoulder strap, including those without handle: With outer surface of sheeting of plastic or of textile materials: With outer surface of textile materials: Other: Of vegetable fibers and not of pile or tufted construction: Of cotton.” The handbag falls within textile category designation 369. It is dutiable at the general column one rate of duty at 6.3% ad valorem.

With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise, which is the product World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non- WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to the merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita. doc.gov.

EFFECT ON OTHER RULINGS:

In NY M84931, although the handbag was correctly classified in heading 4202, HTSUSA, the merchandise was improperly classified as to the subheading within 4202, HTSUSA. Accordingly, NY M84931 is modified to reflect the above classification. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Myles B. Harmon, Director

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