HQ 960009

October 16, 1997

CLA-2 RR:TC:TE 960009 jb

CATEGORY: Classification

TARIFF NO.: 4202.92.3030; 4202.92.4500

Port Director

U.S. Customs Service

10 Causeway Street, Suite 801

Boston, Massachusetts 02222-1056

RE: Decision on Application for Further Review of Protest No.

0401-96-100141; travel pouches; Chapter 42, Additional U.S.

Note 1

Dear Sir:

This is a decision on application for further review of a

protest timely filed by Sullivan & Lynch, P.C., on behalf of Sara

Michaels, a division of LaLoren Inc., on April 3, 1996, against

your decision regarding the classification of travel pouches.

All entries were liquidated on February 2, 1996. Samples were

submitted to this office for examination.

FACTS:

The submitted merchandise, referenced styles 92026, 93022,

94101, 94104 and 93144, consist of a variety of bags which are

imported empty, but subsequent to importation will be sold and

retail packaged with various toiletries or bath products.

Although the Protestant has indicated that all of the merchandise

is made up of PVC material, this is not an accurate reflection of

the subject merchandise. The different styles (even within the

same style number) are not all composed of the same material.

The same style may be made up alternately of a clear PVC sheeting

and an exterior of man-made textile material with a compact

plastic backing, or of a clear PVC sheeting and an exterior of a

solid color embossed compact plastics with a woven fabric

backing. Accordingly, as per the discussion that will follow,

the essential character of the subject merchandise is not always

imparted by the PVC material.

The Protestant has described the merchandise as follows:

92026- a transparent PVC pouch with a flap cover with a

press button closure; the bag has trimming and a ribbon loop

and measures 8-1/2 inches by 7 inches by 2-1/4 inches;

93022- a transparent vinyl pouch with a PVC top and bottom

and a zipper closure at the top; the bag measures 8-3/4

inches by 5-1/8 inches by 5-1/8 inches;

94101- a transparent PVC pouch with a string closure;

94104- a transparent PVC pouch with two handles and a zipper

closure at the top;

93144- a PVC round bag with loop.

The literature on the bags clearly describe the above

merchandise as travel bags. Some of the wording on the

literature reads \"Travel Ensemble\", and indicates that the

merchandise is for \"women on the go\" which \"may be used to hold

cosmetic items, scarves or jewelry\".

Customs classified the subject merchandise in heading 4202,

Harmonized Tariff Schedule of the United States (HTSUS), which

provides for, among other things, traveling bags with outer

surface of sheeting of plastics. In the opinion of the

Protestant that classification determination is incorrect. The

Protestant advocates classification of the subject merchandise in

heading 3923, HTSUS, which provides for, among other things,

articles for the packing or conveyance of goods, of plastics. In

support of this claim the Protestant makes reference to the

following:

1\. Customs interpretation of articles classifiable in

heading 4202, HTSUS, is too broad; Headquarter Ruling

Letter(HQ) 955660 and HQ 082218 are cited;

2\. The subject merchandise would not be used as a travel

case because of its poor construction; New York Ruling

Letter (NY) 894410, NY 809095, NY 803747 and NY 871394

are cited;

3\. No attempt is being made to market the subject

articles- only the articles contained therein;

4\. Alternative classification is sought in heading 3924,

HTSUS; NY 871696 and HQ 952433 are cited.

ISSUE:

Whether the subject merchandise is classifiable in heading

4202, HTSUS, which provides for, among other things, traveling

bags with outer surface of sheeting of plastics or in heading

3923, HTSUS, which provides for, among other things, articles for

the packing or conveyance of goods, of plastics?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff

Schedule of the United States Annotated (HTSUSA) is in accordance

with the General Rules of Interpretation (GRI). GRI 1 provides

that classification shall be determined according to the rules of

the headings and any relative section or chapter notes, taken in

order. Merchandise that cannot be classified in accordance with

GRI 1 is to be classified in accordance with subsequent GRI.

Heading 4202, HTSUS, 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,

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. (Emphasis

added). 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\....

Heading 3923, HTSUS, provides for articles for the

conveyance or packing of goods, of plastics; stoppers, lids, caps

and other closures, of plastics. Legal Note 2(ij), Chapter 39

excludes from Chapter 39, saddlery or harness or trunks,

suitcases, handbags, or other containers of heading 4202, HTSUS.

The Explanatory Notes to the Harmonized Commodity Description and

Coding System (EN) to that heading state:

The heading excludes, inter alia, household articles such as

dustbins, and cups which are used as tableware or toilet

articles and do not have the character of containers for the

packing or conveyance of goods, whether or not sometimes

used for such purposes (heading 39.24), containers of

heading 42.02 and flexible intermediate bulk containers of

heading 63.05.

The Protestant asserts that Customs interpretation of

articles classifiable in heading 4202, HTSUS, is too far reaching

and that the interpretation of articles classifiable in heading

3923, HTSUS, is too narrow. In support of this claim, HQ 955660,

dated September 27, 1994, wherein PVC pouches and bags were

classified in heading 4202, HTSUS, is cited. Similarly, the

Protestant disagrees with Customs interpretation that the

permanent nature of the article is

determinative of classification. To illustrate this point HQ

082218, dated February 27, 1990, wherein a plastic patient

belonging bag, not substantially constructed, was classified in

heading 3923, HTSUS, is cited.

In Totes Inc., v. United States, 18 C.I.T. 919, 865 F. Supp.

867, 871 (1994), the Court of International Trade concluded that

the \"essential characteristics and purpose of the Heading 4202

exemplars are\...to organize, store, protect and carry various

items.\" The Court also ruled that by virtue of ejusdem generis

the residual provision for \"similar containers\" in heading 4202,

HTSUS, is to be broadly construed. It is evident from the above

referenced court case that Customs interpretation of articles

classifiable in heading 4202, is clearly supported and upheld by

the Court of International Trade. The subject bags are of a kind

designed to provide storage, protection, organization and in some

way, portability, as expressly stated in the Note to heading

4202, HTSUS and confirmed in Totes. They are also substantially

similar to the PVC pouches and bags ruled classified in heading

4202, HTSUS, in HQ 955660. See also HQ 958174, dated January 31,

1996, where a heart-shaped PVC shoulder bag was classified in

heading 4202, HTSUS.

With respect to Protestant\'s argument that Customs

interpretation of heading 3923, HTSUS, is too restrictive, we

disagree. The articles enumerated in the EN\'s to heading 3923,

HTSUS, clearly indicate items, which by the nature of their size

or use, are designated for a commercial purpose and not for

\"household use\". On the other hand, the articles of 4202,

HTSUS, as provided for by the EN to that heading, are intended

for personal use and will be used repeatedly over a given period

of time. Accordingly these 4202 articles will be substantially

constructed. The presence of heading 3923, HTSUS and heading

4202, HTSUS, is clearly an intended classification distinction

under the tariff.

HQ 082218 is also distinguishable from the subject

merchandise. The patient belonging bag in that determination was

made of polyethylene (PE) plastics- a plastic which is normally

not as durable as the PVC plastic of the protested articles.

The patient bags are purchased by hospitals, clinics and medical

laboratories at wholesale and are used by outpatients, as well as

inpatients on a one time use basis and disposed of after initial

use. The patient bags are neither designed for prolonged use nor

are they normally sold at retail. As these patient bags were

found not to be for prolonged use and not substantially

constructed, they were correctly classified in heading 3923,

HTSUS.

In NY 809095, dated April 25, 1995, NY 803747, dated

December 2, 1994, NY 894410, dated February 7, 1994 and NY

871394, dated February 24, 1992, bags which were specially shaped

or fitted to contain bedding were classified in heading 3923,

HTSUS. That determination was based on the fact that the bags

were of a kind normally sold at retail with the contents and not

of a kind used to contain personal effects during travel. The

subject merchandise is distinguishable in that the bags are not

of a kind normally used in the packaging of toiletries/cosmetics

and are of a kind sold at retail on their own merits as travel or

toiletry bags. Thus, while articles of bedding are usually found

packaged in some form of plastic carrying container, they are

intended for temporary use. Once the item of bedding is

purchased, the bag is most likely discarded. It is highly

unlikely that the subject merchandise, which holds the various

toiletries will be discarded. In fact, the packaging and

advertisement for this merchandise is very suggestive to the

consumer that the incentive to purchase these items is not only

for the contents

but even more so for the convenient carrying case in which they

are placed. We similarly disagree with the Protestant\'s

assertion that \"since the bag is not leak proof a wise traveler

would not carry soap or bath gel in it. A more likely use would

be to store household articles inside it\.... The shape of the bag

was specifically designed to pack articles, not for prolonged

use\". It is the opinion of this office that these bags are the

type of bags specifically provided for in heading 4202, HTSUS,

that is, traveling bags and toiletry bags. It is not pure

coincidence that the articles they carry consist of toiletries

and other personal use items. We also do not feel that these

bags are \"specially designed\" for these articles. The bags are

simply not specially fitted for the toiletry articles they will

contain inside. We are of the opinion however, that the PVC

construction and compact size of these bags makes them durable

and ideal for travel.

The claim that these bags are not being marketed as \"travel

bags\" has no merit. As we have already stated, the accompanying

literature on this merchandise is more than suggestive to the

consumer that these bags are not to be discarded but are to be

used over and over again, particularly for travel purposes. For

example, for style 94104 the accompanying literature states:

The Handbag Ensemble is the perfect little tote for today\'s

active woman. Great for cosmetics and toiletries for the

gym, sunscreens, combs, or lip-balms for the beach\...the

possibilities are endless! Our vinyl tote has a sleek

contemporary design which makes this ensemble a true winner

for your fashion forward customers.

A similar advertisement reads:

The Travel Ensemble is the perfect gift for the woman on the

go. The vinyl tote is reminiscent of the very popular

vintage luggage shapes with a very 90\'s clean look. May be

used to hold cosmetic items, scarves, or jewelry.

The impact of this literature is so strong that it is almost

debatable what is being sold to the consumer- the toiletries or

the trendy bags.

Finally, we come to Protestant\'s argument that if Customs

does not agree with classification of this merchandise in heading

3923, HTSUS, that alternatively, heading 3924, HTSUS, be

considered. In support of this claim HQ 952433, dated November

25, 1992 and NY 871696, dated March 25, 1992, are cited. Heading

3924, HTSUS, provides for, tableware, kitchenware, other

household articles and toilet articles, of plastic. In HQ 952433

a molded plastic soap dish or box which was designed to be worn

by an individual while showering was classified in heading 3924,

HTSUS. This article is distinguishable from the present

merchandise in that it is not an article similar to the traveling

bags of heading 4202, HTSUS. The soap dish was determined to be

a \"toilet article\" as provided for under that heading. The

subject merchandise on the other hand is not per se a toilet

article, but something that will transport or carry the toilet

article. In addition, as the soap dish was manufactured of a

molded plastic and not of a named material of the second half of

heading 4202, HTSUS, it cannot be considered to be classifiable

in that heading. In NY 871696, the article in question consisted

of something similar to a closet shoe bag which was designed to

be hung from a flat surface featuring a number of open pockets on

one side; the open pockets would not securely hold anything in

place. As such, this bag was not designed to contain personal

effects during travel.

We make one last observation with respect to the

classification of this merchandise. A representative sample of

the identical merchandise was submitted by the same importer and

was the subject of Port Decision (DD) 812176, dated July 13,

1995\. At that time, the merchandise was described as being made

of plastic sheeting and nylon with a pull cord at the top

(similar to what is now being referred to as style 94101). It

was stated that the article was a non-reusable packing container.

DD 812176 disagreed with that assertion and found the article not

to be packing and classified it in heading 4202, HTSUS. This

decision was not protested by the importer. Thus, it appears

that the importer had prior knowledge regarding the correct

classification of this merchandise. Furthermore, as the

Protestant did not check the appropriate block in the CFR 19

Application for Further Review, we leave the matter in your

discretion regarding whether or not any action should be taken

with respect to this matter.

We find that the subject merchandise was correctly

classified in heading 4202, HTSUS.

HOLDING:

The protest should be denied in full and a copy of this

ruling should be appended to the CF 19 Notice of Action to

satisfy the notice requirement of section 174.30(a) Customs

Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office 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 of the decision. Sixty

days from the date of the decision the Office of Regulations and

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS and the public

via the Diskette Subscription Service, Freedom of Information Act

and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division