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HQ H016790




January 31, 2008

CLA-2 OT:RR:CTF:TCM H016790 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3020

Mark K. Neville, Jr.
Lynn Van Buren
DLA Piper US LLP
1251 Avenue of the Americas
New York, New York 10020-1104

RE: Request for Reconsideration of NY N011919, dated June 18, 2007, concerning Classification of a Backpack Laundry Duffle

Dear Mr. Neville and Ms. Van Buren:

This is in response to your letter, on behalf of The Evercare Company, requesting reconsideration of Customs and Border Protection’s New York Ruling (NY) N011919, dated June 18, 2007, which involved the classification of Evercare’s “Backpack Laundry Duffle” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your letter and sample were forwarded to this office for our response. In addition to your submission, we considered points discussed in our teleconference on November 5, 2007. We have reviewed NY N011919 and determined that the classification provided for this merchandise is correct.

FACTS:

The “Backpack Laundry Duffle” is a drawstring backpack that measures approximately 22” (H) by 16” (W). It has adjustable padded permanently attached shoulder straps. The top 1/3 of the bag is of a warp knit double-layered man-made fiber fabric and the bottom 2/3 of the bag is of a plain-woven man-made fiber fabric. The exterior of the item features three small pockets of the same warp knit fabric as the top. It is of a durable construction and is suitable for continued reuse. It is designed to provide storage, protection, portability, and organization to clothing and other personal effects during travel. The bag has a plastic identification window with a card for one’s name, address and phone number. While the bag may be used within the home, it is not designed exclusively for domestic use. ISSUE:

Whether the “Backpack Laundry Duffle” is properly classified under heading 4202, HTSUSA, which provides for “traveling bagsknapsacks and backpacksof textile materials” or heading 6307, HTSUSA, which provides for other made up articles?

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 6307, HTSUSA

Note 1(l) to Section XI states the following: “This Section does not cover: [a]rticles of textile materials of heading 4201 or 4202.” As heading 6307, HTSUSA, is a part of Section XI, articles of textile materials of heading 4202, HTSUSA, are precluded from classification therein.

Heading 6307, HTSUSA, is a basket provision providing for “other made up articles.” The ENs to heading 6307, HTSUSA, specifically exclude “travel goods (suitcases, rucksacks, etc.), shopping bags, toilet cases, etc. and all similar containers of heading 4202, HTSUSA. Therefore if we determine that the laundry duffle backpack is a travel good classifiable in heading 4202, HTSUSA, it is precluded from classification in 6307, HTSUSA.

HEADING 4202, HTSUSA

Heading 4202, HTSUSA, specifically covers various cases and containers, and provides as follows:

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.

Backpacks are specifically named in heading 4202. Neither the tariff schedule nor the Explanatory Notes offer a definition of the term “backpack”. The meaning of a tariff term, absent contrary congressional intent is one that is in accord with its common and popular understanding. See Carl Zeiss v. United States, 195 F. 3d 1375, 1379 (Fed. Cir. 1999). The Merriam Webster online dictionary offers the following definition for backpack: “a piece of equipment designed for use while being carried on the back.” The subject merchandise is a piece of equipment designed for use while being carried on the back.

Additional U.S. Note 1 to Chapter 42 specifically provides that “travel, sports and similar bags” means goods “of a kind designed for carrying clothing and other personal effects during travel, including backpacks.” The “Backpack Laundry Duffle” at issue is clearly designed to carry clothing during travel. The travel may be from a dorm room to the laundromat or to a washing machine but nonetheless the item is clearly meant for transporting clothing and personal effects. The marketing materials state that the bag has “Comfortable Backpack Straps for Easy Transport.” It is marketed as a backpack; the packaging portays a young woman with the item on her back. The presence of a plastic identification window with a card for one’s name, address and phone number is further indication that the bag is intended to leave the home and not merely for domestic use.

You argue that the backpack is not of a design or of suitably durable construction to be properly classified within 4202, HTSUS, as a travel, sports or similar bag. A visual examination of the product indicates that the bottom 2/3 plain-woven man-made fiber fabric is in fact very durable. The material appears to be as strong as one would find on a backpack used to carry college books, for example.

You state that the mesh fabric with which the bag is constructed is not conducive to travel or sport use. However, a bag constructed of a mesh fabric is not precluded from classification within 4202, HTSUSA. See NY L86344, dated August 10, 2005 and NY J85070, dated June 3, 2003. Only the top 1/3 of the bag is constructed of a mesh fabric, in fact a double layered mesh fabric. The bottom 2/3 is constructed of a durable woven canvas textile material that has reinforced stitching at every seam. Since the mesh section of the bag is at the top, it would not be the part subject to the most wear and tear from placing the backpack on the ground or other surfaces. In addition, during our teleconference you indicated that the straps on the backpack are not reinforced and therefore would not sustain extended use. A visual examination of the backpack reveals, however, that the straps are very strongly reinforced with stitching and the straps are similar to those used on backpacks meant for carrying heavy books. Additionally the packaging material clearly states: “Reinforced nylon straps provide ultimate strength and durability.” Even if the straps were not reinforced, this would not preclude classification in heading 4202, HTSUSA. We have consistently classified backpacks, even those with thin drawstring straps, in heading 4202, HTSUSA. See N012989, dated June 26, 2007; N012230, dated June 26, 2007; NY N011934, dated June 13, 2007; NY M86581, dated October 25, 2006; NY M84897, dated July 26, 2006; and NY L82907, dated March 23, 2005.

You also assert that the drawstring closure makes the backpack impractical for extended travel. The presence of a drawstring closure, particularly a drawstring closure with a cordlock fastener, does not preclude an item from being classified as a backpack or within the other provisions of heading 4202, HTSUSA. See HQ 963565, dated October 12, 1999; N012230 dated June 26, 2007; N012989, dated June 26, 2007; N011934, dated June 13, 2007; NY M86581, dated October 25, 2006; M84897, dated July 26, 2006; NY L82907, dated March 23, 2005; NY L82765, dated March 11, 2005; NY L89245, dated December 9, 2005; NY G83311, dated November 2, 2000; NY G83306, dated November 2, 2000; NY C81432, dated November 24, 1997; NY 808488, April 21, 1995; and NY 808146, dated March 29, 1995. When securely closed, the subject merchandise will secure the contents inside.

We have found that drawstring pouches of insubstantial construction, which are not specially shaped or fitted to contain specific merchandise, are not similar to the containers enumerated in heading 4202, HTSUSA. [emphasis added] See HQ 964236, dated April 18, 2002; HQ 956425, dated July 28, 1994: HQ 953177, dated April 7, 1993; HQ 953176, dated March 16, 1993; HQ 088411, dated April 23, 1991; and HQ 086852, dated May 10, 1990. The instant case is distinguishable because as stated previously its construction is durable and substantial.

In summary, the backpack is suitable for repetitive reuse, so it cannot be precluded from 4202, HTSUS, based on the claim that it is not of durable construction. It is designed to provide, storage, protection, portability, and organization during travel. Finally backpacks are designated eo nomine in 4202, HTSUSA. The item therefore is properly classified in 4202.92.3020, HTSUSA, which provides for “Trunks, suitcases.spectacle cases,guncases, holsters and similar containers; traveling bags.knapsacks and backpacks...: 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: Backpacks.” This classification is consistent with other rulings in which we have found that laundry bags, which because of their construction can also function as traveling bags, are eo nomine provided for in heading 4202, HTSUSA. See NY M85106, dated August 10, 2006; NY G83311, dated November 2, 2000 and NY G83306, dated November 2, 2000.

HOLDING:

Insofar as classification of the Backpack Laundry Duffle is concerned, NY N011919 is affirmed.

The subject merchandise is correctly classified in subheading 4202.92.3020, HTSUSA, which provides for “Trunks, suitcases.spectacle cases,guncases, holsters and similar containers; traveling bags.knapsacks and backpacks.: 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: Backpacks.” The general column one duty rate is 17.6 percent ad valorem. Merchandise classifiable in subheading 4202.92.3020, HTSUSA, falls within textile quota category 670.

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 your client 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 to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita. doc.gov.

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,


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