HQ 955660

September 27, 1994

CLA-2 CO:R:C:T 955660 NLP

CATEGORY: Classification

TARIFF NO.: 4202.92.4500

Mr. Peter J. Allen

Neville, Peterson & Williams

80 Broad Street- Suite 3400

New York, NY 10004

RE: NYRLs 892433, 870762, 884087, 874907 headings 3923, 3926 and

4202; Legal Note 2(h) to Chapter 39; Additional U.S. Note 1

to Chapter 42; Legal Note 2(a) to Chapter 42; Explanatory

Notes to heading 4202; travel, sports and similar bags; HRLs

087419, 954965, 954970, 085526, 082218, 082609, 087026 and

085769

Dear Mr. Allen:

On November 30, 1993, our New York office issued to you, on

behalf of your client, Dolly, Inc., (\"Dolly\") New York Ruling

Letter (NYRL) 892433, which classified a \"Diaper bag\" in subheading

4202.92.4500, Harmonized Tariff Schedule of the United States

(HTSUS). In a letter to Customs Headquarters, dated December 20,

1993, you requested, on behalf of Dolly, a reconsideration of this

ruling. In addition, on July 13, 1994, you met with my staff

attorneys to discuss your position concerning the classification

of the \"Diaper bag\". You have also provided us with three samples

of this bag.

FACTS:

The article at issue is called a \"dirty diaper bag\". You

informed us in your submission and again in the meeting that was

held on July 13, 1994, that the sample described in NYRL 892433 is

not identical in all respects to the merchandise that will be

imported. The bag in NYRL 892433 had a zipper closure, while the

article, in its condition of importation, will not have a zipper

closure. As a result, we will reconsider NYRL 892433 as it

pertains to the bag with a zipper closure and we will also provide

you with a classification of the bags in the condition that Dolly

intends to import them in.

The diaper bags at issue are flat, vinyl, pouch-like bags.

The first sample has a metal zipper opening and measures

approximately 7 inches by 10 inches. The second and third samples,

which measure 8 inches by 10 inches, will each have a vinyl flap

that extends from the top of the bag and overlaps the opening.

This flap will be sewn along the edges but will have no other means

of closure. The sides of the bags are made of clear vinyl (PVC)

sheeting and the bags contain no gussets. The edges have been

closed by means of stitched plastic piping. The first and second

samples each have a sewn-on loop for attachment to the main

changing bag, while the third bag does not feature a loop.

While the subject articles will be imported separately, they

will be sold with a diaper changing bag. Used together, the diaper

changing bag and the dirty diaper bag will permit persons traveling

with a baby to transport the necessary changing supplies while

segregating the soiled diapers from the rest of the contents of the

changing bag. The articles at issue are intended for use in

transporting soiled diapers.

In addition to the subject dirty diaper bags, you submitted

a diaper changing set consisting of the outer carrying bag, a

bottom stiffener insert and a changing pad. The set was submitted

to illustrate the manner in which the bags with the loops are

attached to the outer changing bag. A strap attached to the inside

of the changing bag permits the dirty diaper bag to be secured

within the changing bag and permits it to be located and removed

easily by grasping the strap. It also permits the user to remove

the other contents of the changing bag without the need of holding

the dirty diaper bag apart.

NYRL 892433 classified the dirty diaper bag with a zipper

closure in subheading 4202.92.4500, HTSUS, which provides for the

following \"\[t\]runks, suitcases\...; traveling bags, toiletry bags,

knapsacks and backpacks, handbags\...and similar container,\...of

sheeting of plastics: \[o\]ther: \[w\]ith outer surface of sheeting of

plastic or of textile materials: \[t\]ravel, sports and similar bags:

\[o\]ther.\" It is your position that the bags at issue are

classifiable in subheading 3923.29.0000, HTSUS, which provides for

\"\[a\]rticles for the conveyance or packing of goods, of plastics;

stoppers, lids, caps and other closures, of plastics: \[s\]acks and

bags (including cones): \[o\]f other plastics.\" In the alternative,

you argue that the pouches are classifiable in subheading

3926.90.9090, HTSUS, which provides for \"\[o\]ther articles of

plastics and articles of other materials of headings 3901 to 3914:

\[o\]ther: \[o\]ther: \[o\]ther.\"

ISSUE:

Is the \"dirty diaper bag\" classifiable as a travel, sports

and similar bag in subheading 4202.92.4500, HTSUS, or as a sack or

bag in subheading 3923.29.0000, HTSUS, or as an other article of

plastics in subheading 3926.90.9090, HTSUS?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by

the General Rules of Interpretation (GRI\'s), taken in order. GRI

1 provides that classification shall be determined according to

the terms of the headings 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\'s may be applied, taken in

order.

Heading 3923, HTSUS, provides for \"\[a\]rticles for the

conveyance or packing of goods, of plastics;\....\" Legal Note 2(h)

to Chapter 39, HTSUS, precludes from classification therein

\"\...trunks, suitcases, handbags or other containers of heading

4202.\" Accordingly, our first determination is whether the dirty

diaper bags are classifiable under heading 4202, HTSUS, and if they

are items classifiable in heading 4202, HTSUS, then they are

precluded from classification in Chapter 39, HTSUS.

Heading 4202, HTSUS, provides for the following:

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. Note 1 to Chapter 42, HTSUS, states:

For purposes of heading 4202, the expression \'travel, sports

and similar bags\' means goods\... of a kind designed for

carrying clothing and other personal effects during travel,

including backpacks and shopping bags of this heading\...

The Harmonized Commodity Description and Coding System Explanatory

Notes (ENs) to heading 4202 state, on page 613, that

this heading does not cover \"\[a\]rticles which, although they may

have the character of containers, are not similar to those

enumerated in the heading\...\"

The articles at issue are bags designed to transport \"personal

effects\" (i.e., dirty diapers and, given the size of the bags,

other toiletry or hygiene articles) \"during travel\" (i.e., from one

location to another). Essentially, the purpose of the bags is to

organize, protect and transport these effects. The cases will be

used inside of another container, for example, the diaper changing

bag. We note that as there is no qualification of the term \"during

travel\", this office will not place limits on the duration or

distance of any journey in order for it to constitute travel within

the purview of the U.S. Note set forth above. Travel may

constitute relatively minor journeys such as commutes to work or

lengthier trips of greater duration.

As the bags are designed to transport personal effects during

travel, it is our position that they are all classifiable as

travel, sports or similar bags in subheading 4202.92.4500, HTSUS.

See, HRL 087419, dated July 12, 1990, wherein Customs recognized

that travel bags are articles designed to aid in organizing and

providing a convenient carrying case for an individual.

In addition, we note that the subject articles are similar to

cosmetic cases, which we have classified as travel, sports and

similar bags. For example, in HRL 954965, dated September 20,

1993, we classified cosmetic cases made of plastic sheeting as

travel bags as they were designed to transport personal effects.

We stated that, given their function, these cases were more

specifically described as travel bags than as articles designed to

be carried in the handbag. See also, HRL 954970, dated September

20, 1993, wherein we classified a bag made of plastic sheeting that

was used to hold rechargeable Remington electric shavers, with a

secondary usage being for cosmetics, in subheading 4202.92.4500,

HTSUS.

Furthermore, there is no prerequisite that containers of

heading 4202, HTSUS, must be specially fitted to accommodate a

particular object, nor need they necessarily possess handles or

straps, nor must they be constructed with rigid exteriors.

Therefore, the fact that the subject bags do not have gussets or

carrying handles does not preclude them from classification as

travel, sports or similar bags. See, HRL 952700, dated December

23, 1992. We also note that even though two of these bags do not

have either a zipper closure or a slide fastener closure, this also

does not preclude their classification in heading 4202, HTSUS. It

is our position that the flap closure will ensure that the items

won\'t fall out and it will be sufficient to enclose the items the

bags are meant to transport. Thus, as we find that the bags are

classifiable as travel, sports and similar bags in heading 4202,

HTSUS, they cannot be classified under either heading 3923, HTSUS,

or heading 3926, HTSUS, by reason of Legal Note 2(h) to Chapter 39,

HTSUS.

However, it is your position that the subject bags are not

classifiable in heading 4202, HTSUS, and are more appropriately

provided for in heading 3923, HTSUS. First, the items are composed

of plastics, as PVC sheeting comprises practically the entire

surface area of the bags and provides their visual effect. Second,

the bags are intended for use in conveying other articles. Their

purpose is to carry soiled diapers inside the diaper changing bag

and, at the same time, they segregate the soiled diapers from the

other contents in the diaper changing bag. The vinyl sheeting of

the bags provides a moisture-proof barrier to protect the inside

of the changing bag. In support of this position, you cite the ENs

to heading 3923, which state that plastic bags are included within

the merchandise covered by this heading. In addition, you cite HRL

082218, dated February 27, 1990, and HRL 082660, dated February 23,

1990, in which Customs classified plastic bags used for hospital

patients in heading 3923, HTSUS. You also note HRL 085526, dated

December 21, 1989, and NYRL 884087, dated April 7, 1993, which

classified pencil pouches made of plastic sheeting in heading 3923,

HTSUS.

In HRL 082218, certain polyethylene plastic bags used by

hospitals to store the personal belongings of patients were

classified in heading 3923, HTSUS. We concluded in this decision

that the bags \"could not be reused\" and they were not of the type

of bag contemplated by heading 4202, HTSUS, by virtue of Note 2(a)

to Chapter 42, HTSUS, which states that heading 4202 does not cover

\"bags made of sheeting of plastics, whether or not printed, with

handles, not designed for prolonged use (heading 3923).\" The bags

in HRL 082660 served the same function as the bag in HRL 082218 and

could also be used as refuse bags, which are provided for in the

ENs to heading 3923, HTSUS.

By implication, bags composed of plastic sheeting which are

designed for prolonged use may be classified in heading 4202,

HTSUS. In the instant case we are of the opinion that the subject

bags have been designed for repetitive use. The plastic material

is reinforced on each side with stitched plastic piping and appears

thick enough to resist rips and tears. These bags are more

substantial than the patient bags described above. As stated

above, they are similar to travel and cosmetic bags and, therefore,

are the type of bag to be classifiable in heading 4202, HTSUS.

In HRL 085526 we dealt with the classification of two styles

of pencil cases made of plastic sheeting. The first measured

approximately 9-1/2 inches by 6 inches with no gusset and had an

interlocking Ziplock-type closure. The second style measured

approximately 11 inches by 6-1/2 inches with no gusset and it had

a flap and metal closure. Both styles had a series of stamped

holes which could be punched out to allow placement onto rings of

a looseleaf binder and both were intended to contain various school

supplies. We held that these notebook pouches of plastic which

were designed to hold school supplies and to facilitate their

conveyance between various locations were classifiable in

subheading 3923.29.0000, HTSUS. See also, NYRL 884087, dated April

7, 1993.

In arriving at this classification, Customs considered the

applicability of subheading 4202.32, HTSUS, and noted that in a

prior ruling, HRL 085356 dated November 20, 1989, pencil pouches

were classified in heading 4202, HTSUS, as their size and generic

characteristic strongly suggested they were to be carried in a

handbag. However, the pencil cases in HRL 085526 were designed

to be carried inside a looseleaf binder, not a pocket or handbag,

and this was evidenced by the presence of stamped/punch out holes

strategically located to accommodate looseleaf binder rings.

Additionally, the pouches were considered too large to be placed

in a pocket or handbag. Therefore, we held that these pouches were

more specifically classifiable in subheading 3923.20.0000, HTSUS.

Furthermore, we note that other pencil pouches that served

similar functions to those classified in HRL 085526, but were not

designed to be placed in a looseleaf binder and were smaller in

dimension, have been classified in heading 4202, HTSUS. For

example, in HRL 087026, dated July 24, 1990, we classified as a

set a PVC pencil pouch that measured 4-3/4 inches by 8 inches, a

pencil, an eraser and a ruler. As the pencil pouch provided the

set\'s essential character it was classifiable in subheading

4202.32.2000, HTSUS. In HRL 085769, dated January 29, 1990, we

classified two PVC cases in heading 4202, HTSUS. The first article

was a PVC padded flat case with a slide fastener opening and which

was outlined with a nylon cord piping along the seam in heading

4202, HTSUS. The second case was a 2 inch gusseted, unlined case

with a contrasting slide fastener opening. The slide fastener

overhung on either end of the pouch by 2-1/2 inches and could be

snapped to the side of the case. A nylon cord rope was attached

to the slide fastener to aid in opening the pouch. The entire case

measured 8 inches by 4 inches. As both items qualified as a type

of bag or pouch designed for transporting pencils or pens and which

is normally carried in the pocket or handbag, they were classified

in heading 4202, HTSUS. See also, NYRL 877475, dated August 26,

1992, in which Customs classified a pencil pouch constructed of

vinyl that measured approximately 8-1/2 inches by 4 inches in

subheading 4202.32.2000, HTSUS.

The articles in the instant case are distinguishable from the

pencil pouches classified in HRL 085526 and NYRL 884887. As HRL

085526 points out, the pencil pouches were designed to be carried

inside a looseleaf binder and they were considered too large to be

placed in the pocket or handbag. Therefore, the pouches were not

classifiable in subheading 4202.32, HTSUS. In the instant case,

the dirty diaper bags are designed to be carried inside a diaper

changing bag, an article classifiable in heading 4202, HTSUS. In

addition, while the sizes of the subject bags might preclude their

classification in subheading 4202.32, HTSUS, their use, function

and design do not preclude their classification in heading 4202,

HTSUS.

Moreover, a comparison of the language of heading 3923, HTSUS,

and heading 4202, HTSUS, reveals that the former heading provides

for goods of a commercial nature (i.e, containers for packing and

shipping bulk or commercial goods), whereas heading 4202, HTSUS,

provides for containers used to convey personal articles in

general. Enumerated exemplars in the ENs to heading 3923 include

such articles as boxes, cases, crates, sacks, bags, carboys,

bottles, flasks, spools, cops, bobbins, stoppers, lids, caps, other

closures and similar articles. It is clear that this heading

provides for cases and containers of bulk goods and commercial

goods not personal items. Conversely, heading 4202, HTSUS,

provides for a variety of containers ranging from luggage to sports

and travel bags, to fitted cases, and assorted similar articles.

The key distinction is \"that heading 3923, HTSUSA, provides for

more industrial or commercial type containers intended to transport

bulk or commercial articles while heading 4202, HTSUSA, provides

for, in part, containers designed to transport the assorted

personal belongings of an individual whether it be food, clothing,

documents, tools, etc\...\" See, HRL 954072, dated September 2,

1993\. Therefore, as the subject bags will store, transport and

protect belongings of an individual, they are classifiable in

heading 4202, HTSUS.

HOLDING:

NYRL 892433 is affirmed. The dirty diaper bag with a zipper

is classifiable in subheading 4202.92.4500, HTSUS. The applicable

rate of duty is 20% ad valorem.

The dirty diaper bags without zipper closures are also

classifiable in subheading 4202.92.4500, HTSUS.

We note that this ruling is inconsistent with NYRL 870762,

dated February 6, 1992, which was also issued to you on behalf of

Dolly, Inc. In addition, based on our discussion of the scope of

heading 3923, HTSUS, the pencil pouches at issue in HRL 085526 and

NYRL 884887 were incorrectly classified. Therefore, pursuant, to

section 625(c)(1) of Title VI of the North American Free Trade

Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), we

intend to take appropriate action to revoke NYRLs 870762, 884887

and HRL 085526 in accordance with the position taken in this

ruling.

Sincerely,

John Durant, Director

Commercial Rulings Division