Application for Further Review of Protest No. 4601-11-101670; Classification of a novelty tote bag

HQ H209837 August 1, 2013 CLA-2 OT:RR:CTF:TCM H209837 TNA CATEGORY: Classification TARIFF NO.: 4202.92.30 Port Director, Service Port- New York/Newark U.S. Customs and Border Protection 1100 Raymond BoulevardNewark, NJ 07102 Attn: Antoinette Cordi, Import Specialist Re: Application for Further Review of Protest No. 4601-11-101670; Classification of a novelty tote bag Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4601-11-101670, timely filed on October 5, 2011, on behalf of Greenbrier International (“Greenbrier” or “Protestant”). The AFR concerns the classification of three-dimensional novelty tote bags under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The subject merchandise consists of a bag made of non-woven polypropylene textile material. It contains one handle and an open top. It has no pockets or compartments. The sides contain a cardboard stiffener that helps give the bag its square shape. The bag, which has an Easter theme, comes in two styles: the bunny and the chick. The front of each style is embellished with textile additions as appropriate to the animal it portrays. A sample of the bag that portrays the bunny was received and examined by this office. It is a square yellow bag that measures approximately 6” in length and width. It is approximately 6” deep. The front contains a pink and white depiction of a bunny’s head and, and two strips of textile are fastened to the top of the bag to portray an extension of the bunny’s ears. The subject merchandise entered on December 23, 2010, under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The port liquidated the merchandise on August 12, 2011, in subheading 4202.92.30, 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 textile materials… Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” The importer filed this protest and AFR on October 5, 2011, claiming classification as entered. ISSUE: Whether the subject bag is classified as a tote bag of heading 4202, HTSUS, or as a novelty Easter basket in heading 6307, HTSUS? LAW AND ANALYSIS: Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 4601-11-101670 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the protested decision is alleged to be inconsistent with the ruling of the Commissioner of CBP or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, the Protestant argues that the port’s classification of the subject merchandise in heading 4202, HTSUS, is contrary to multiple rulings in which CBP has classified similar textile novelty Easter baskets in heading 6307, HTSUS. Protestant cites HQ 967444, dated January 18, 2005, NY N082995, dated November 12, 2009, and NY N052044, dated February 19, 2009, in support of this argument. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. The HTSUS headings under consideration are the following: 4202 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 6307 Other made up articles, including dress patterns Chapter Note 3 to Chapter 42, HTSUS, states, in pertinent part, the following: (A) In addition to the provisions of note 2, above, heading 4202 does not cover: (a) Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923) Additional U.S. Note 1 to Chapter 42, HTSUS, states, in pertinent part, the following: 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. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The EN to heading 4202, HTSUS, states, in pertinent part, the following: This heading covers only the articles specifically named therein and similar containers.   These containers may be rigid or with a rigid foundation, or soft and without foundation. Subject to Notes 2 and 3 to this Chapter, the articles covered by the first part of the heading may be of any material. The expression “similar containers” in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.   The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.)…. The expression “sports bags” includes articles such as golf bags, gym bags, tennis racket carrying bags, ski bags and fishing bags…. The heading does not cover:   (a)  Shopping bags, including bags consisting of two outer layers of plastics sandwiching an inner layer of cellular plastics, not designed for prolonged use, as described in Note 3 (A) (a) to this Chapter (heading 39.23). The EN to heading 6307, HTSUS, states, in pertinent part, the following: This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature…. The heading excludes textile articles classified in more specific headings of this Chapter or of Chapters 56 to 62. It further excludes:… (b)   Travel goods (suitcases, rucksacks, etc.), shoppingbags, toiletcases, etc., and all similar containers of heading 42.02. Protestant argues that the subject merchandise is a novelty Easter basket, not a travel or sports bag. Protestant argues that the subject merchandise’s flimsy nature, shallow, wide dimensions and open top preclude it from classification as a sports or travel bag. Furthermore, Protestant argues that the subject merchandise lacks the characteristics of a sports bag or travel bag in that it is flimsy, is not intended for long term use, and that it lacks the pockets, compartments, or top closure to secure items for transport. Protestant states that the subject merchandise is intended to store Easter eggs, candy, and gifts. Lastly, Protestant argues that HQ 967444’s differentiation between travel or sports bags and novelty baskets supports classification of the subject merchandise in heading 6307, HTSUS. Heading 6307, HTSUS, is a basket provision that provides for merchandise not elsewhere specified in the tariff schedule. Thus, we must exclude the subject merchandise from other headings before we can classify it in heading 6307, HTSUS. Additional U.S. Note 1 to Chapter 42, HTSUS, defines travel and sports bags of heading 4202, HTSUS, as being “of the kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading.” In addition, in Totes v. United States, the Federal Circuit stated that the principle of ejusdem generis requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated eo nomine in order to be classified under the general terms of a heading. Totes v. United States, 69 F.3d 495; 1995 U.S. App. LEXIS 29841; 17 Int’l Trade Rep. (BNA) 1929. In particular, the court held that the essential characteristics and purpose of the exemplars of heading 4202, HTSUS, were “to organize, store, protect and carry various items.” Id. at 498. Subsequent CBP rulings have applied these essential characteristics to classify such items as wine bottle bags and reusable shopping bags in heading 4202, HTSUS. See, e.g., HQ W968444, dated January 25, 2008; HQ 962033, dated November 29, 1999; HQ 963411, dated October 19, 1999. In these rulings, CBP has found that these bags shared the essential characteristics and purpose of organizing, storing, protecting and carrying various items. Furthermore, in rulings such as HQ 960367, dated August 6, 1997 and HQ 963222, dated August 19, 1999, CBP has specifically ruled on classification for such bags as between headings 4202 and 6307, HTSUS. There, we decided that classification in heading 4202, HTSUS, was proper for bags whose essential character and purpose was protecting, storing and carrying wine bottles. We also excluded other substantially constructed bottle bags from heading 6307, HTSUS, finding that a bottle bag which shared the fundamental characteristics attributable to containers of heading 4202 warranted classification under heading 4202, HTSUS, rather than heading 6307, HTSUS. See HQ 960367 and HQ 963222. Prior rulings have also used the “prolonged use” test, under which CBP has ruled that bags of sheeting of plastics which were of flimsy construction, not durable and although capable of reuse, were not designed for continued repeated use. See HQ 952218, dated October 29, 1992; HQ 954715, dated February 17, 1994; HQ 962563, dated January 19, 2000; HQ H095600, dated November 8, 2010. This “prolonged use” test of heading 4202, HTSUS, is articulated in Chapter Note 2(A)(a) to Chapter 42, HTSUS, which excludes plastic bags not designed for prolonged use. It follows that bags are excluded from heading 4202, HTSUS, when they are not designed for prolonged use are therefore classifiable under heading 3923, HTSUS, rather than heading 6307, HTSUS.  In prior rulings where shopping bags were excluded from heading 4202, HTSUS, pursuant to Chapter Note 2 (A)(a), we have looked to several factors in determining whether a bag was designed for prolonged use. In HQ 953077, dated April 26, 1993, and HQ 962033, dated November 29, 1999, for example, we determined that bags made of flimsy materials such as polyethylene, containing no middle material or inner layer was not likely to last through several uses. Likewise, bags of thin polyethylene film, with heat sealed or molded plastic handles that were capable of limited reuse, were deemed not designed for prolonged use. Similarly, shopping bags such as plastic grocery bags are excluded from classification in heading 4202, HTSUS, when they are intended for single-use or limited re-use, even when they may be capable of re-use. See HQ 953077; HQ 082831, dated September 26, 1990; HQ 082998, dated October 23, 1989. By contrast, bags of more durable construction, of a type sold empty at retail and intended for repeated use, were classified in heading 4202, HTSUS. See 965039, dated April 1, 2002. See also HQ 962033. In the present case, the subject merchandise consists of a bag made of non-woven polypropylene textile material. It also contains cardboard inserts that give the bag shape and durability. Furthermore, its handle gives it portability. Overall, this bag is much like reusable polypropylene shopping bags in that it is meant to organize, store, protect and carry various items. We have previously classified such shopping bags in heading 4202, HTSUS. See, e.g., NY N202558, dated February 29, 2012; NY N184918, dated October 14, 2011; NY N164841, dated June 7, 2011; NY N158076, dated April 22, 2011; NY N145719, dated February 25, 2011; NY N138995, dated January 7, 2011. The fact that the subject bag is of a smaller size than many of previously classified shopping bags does not preclude it from having the same essential characteristics. In addition, given its durable material and cardboard inserts, we find that this bag is re-usable and intended for re-use. As a result, the subject merchandise shares the essential characteristics of the exemplars of heading 4202, HTSUS, and will be classified there. Because the subject bag is classified in heading 4202, HTSUS, it is excluded from heading 6307, HTSUS. Furthermore, the subject merchandise can be distinguished from merchandise at issue in the rulings to which Protestant cites. HQ 967444, for example, classified an Easter basket covered by knit terry fabric and stuffed with fiber fill to give it shape in its torso and stuffed features. The stuffed features make the bunny or chick featured on the basket three-dimensional. Furthermore, the “basket” component of the item, rather than being square-shaped like the bags that CBP has traditionally classified as shopping bags, is more fitted, or shaped, by the fiber and the fabric. As such, it is “readily distinguishable in size and construction from the type of tote bags that are similar to travel bags or shopping bags.” See HQ 967444. Based on an examination of the sample, CBP also concluded that this basket was not designed for or capable of prolonged use. See HQ 967444. For all of these reasons, the Easter basket of HQ 967444 can be distinguished from the subject tote bag. Protestant also cited NY N082995 and NY N052044 in favor of classification in heading 6307, HTSUS. NY N082995 classified an 8” basket constructed of cotton and polyester plush fabric whose plush fabric covered the plastic basket. NY N052044 classified a plush basket made of knit fabric over a stiffener of plastic sheeting. These baskets were similar items to those of HQ 967444 in that they contained three-dimensional representations of bunnies built around shaped baskets that could be distinguished from the type of shopping bags normally classified in heading 4202, HTSUS. Because these items can be distinguished from the subject merchandise, their classification in heading 6307, HTSUS, is not binding on the subject merchandise. Furthermore, in the present case, we note that although the Protestant calls the subject merchandise a three dimensional basket, it is much less a basket than the merchandise at issue in the rulings to which Protestant cites. Prior CBP rulings have defined the term “basket” as “a container made of interwoven twigs, rushes, thin strips of wood, or other flexible material” that includes “containers of all sizes which are designed to hold clothes, among other things.” See, e.g., HQ 086900, dated August 9, 1990. The subject merchandise does not meet this definition because it is made of different material and lacks the stiff structure that characterizes a basket. To the contrary, the subject merchandise is a tote bag whose physical characteristics are substantially different from the types of baskets discussed above but are nearly identical to the type of shopping bags that CBP has previously classified in heading 4202, HTSUS. See NY N202558; NY N184918; NY N164841; NY N158076; NY N145719; NY N138995. As a result, the subject merchandise is classified in heading 4202, HTSUS. HOLDING: By application of GRI 1, the subject tote bag is classified in heading 4202, HTSUS, and specifically in subheading 4202.92.30, 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 sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” The column one, general rate of duty is 17.6% ad valorem. You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, 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