CLA-2 CO:R:C:T 953176 NLP

Ms. Rosalyn Alberdi
A.J. Arango, Inc.
P.O. Box 3007
Tampa, FL 33601

RE: Drawstring pouches; heading 3926; Explanatory Notes to heading 3926; heading 4202; heading 6307; Explanatory Notes to Chapter 63; HRL 086852; HRL 950604; GRI 3(b); EN(VIII) to GRI 3(b); essential character

Dear Ms. Alberdi:

This is in response to your letter dated August 21, 1992, on behalf of your client, Home Shopping Network, in which you requested the tariff classification of a drawstring pouch under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination.

FACTS:

The submitted sample, style no. IMPO1B3, is a pouch that is closed on the sides and bottom and open on the top. The opening closes by means of a drawstring. The bags measures approximately 4-1/2 inches by 5-1/2 inches. It is constructed from a plastic sheeting material and its' exterior surface is covered with man- made fiber flock.

ISSUE:

Is the drawstring pouch a travel or similar bag of heading 4202, HTSUS, or an other made up textile article of heading 6307, HTSUS, or an other article of plastics of heading 3926, 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 4202, HTSUS, provides for a number of distinct but related items. Specifically, this heading 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 plastic sheeting, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials.

While drawstring pouches such as the one at issue are not specifically provided for within the terms of the heading, they may be included in the provision for "similar containers."

In classifying goods as "similar" Customs considers many factors. We do not classify articles in heading 4202, HTSUS, solely on the basis of their potential to contain or hold clothing and/or personal effects. Moreover, in Headquarters Ruling Letter (HRL) 086852, dated May 10, 1990, we stated that the "textile drawstring pouches" did not possess the substantiality required of heading 4202, HTSUSA." That ruling also found that the textile drawstring pouches were not specially shaped or fitted similar to other articles of heading 4202, HTSUS. Those factors (or absence thereof) result in an exclusion from classification in heading 4202, HTSUS.

The subject pouch is made from inexpensive material, is not specially shaped and fitted and is not durable for long term repeated use. It is also not designed to transport personal belongings while traveling. Therefore, it is our position that this pouch is not classified in heading 4202, HTSUS.

Heading 6307, HTSUS, provides for "[o]ther made up articles, including dress patterns." Legal Note 1 to Chapter 63 provides that "[s]ubchapter 1 applies only to made up articles, of any textile fabric." The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to Chapter 63 state, on page 861, that this chapter includes:

Under headings 63.01 to 63.07 (sub-Chapter I) made up textile articles of any textile fabric (woven or knitted fabric, felt, nonwovens, etc.) which are not more specifically described in other Chapters of Section XI or elsewhere in the Nomenclature....

The merchandise at issue is made of plastic sheeting material. The textile flock consists of no more than short, textile fibers adhered onto the plastic. Therefore, the flocked plastic material from which the pouch is made is not a fabric within the scope of Section XI. Consequently, based on the relevant chapter notes and the ENs, this pouch is not classifiable in heading 6307, HTSUS. See, HRL 950604, dated March 20, 1992, which dealt with the classification of an inflatable travel headrest and a matching pouch. Both items were made of PVC sheeting with an exterior surface of textile flock. HRL 950604 held that the flock was not considered to be a fabric within the scope of Section XI and the headrest was classifiable in heading 3926, HTSUS. The pouch, if entered with the headrest, was classifiable with it, pursuant to GRI 5(a).

Since we find no other heading which, by GRI 1, includes this merchandise, the remaining GRI's may be applied. Specifically, GRI 3(b) is applicable and it provides that:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Harmonized Commodity Description and Coding System Explanatory Note (EN)(VIII) to GRI 3(b) provides, on page 4, the following guidelines for determining the essential character of an article:

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In this case, the primary constituent materials of the pouch are the man-made textile flocking and the plastic sheeting material to which the flocking is adhered. We consider the plastic sheeting, which underlies the flock, to be the material which constitutes the pouch's essential character. It is the plastic sheeting that forms the shape of the bag and gives the bag its structure. The flock merely provides the pouch with an attractive outer surface.

Heading 3926, HTSUS, provides for "[o]ther made up articles of plastics and articles of other materials of headings 3901 to 3914." According to the ENs to heading 3926, this heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14. The subject pouch is classifiable in heading 3926, HTSUS. Specifically, it is 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."

HOLDING:

The drawstring pouch is classified 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." It is dutiable at the rate of 5.3 percent ad valorem.


Sincerely,

John Durant, Director
Commercial Rulings Division

1 cc: D.D., Tampa
1 cc: CITA
6 cc: A.D. N.Y. Seaport
1 cc: Legal Reference
1 cc: NIS Gorman
1 cc: Dick Crichton, OTO