CLA-2 CO:R:C:T 955515 BC
District Director of Customs
U.S. Customs Service
1205 Royal Lane
Dallas/Fort Worth, Texas 75261
RE: Application for further review of protest no. 5501-93-
100353; classification of a tote bag; travel bag; travel, sports,
and similar bags; GRI 6; GRI 3(b); GRI 3(c)
This is a decision on an application for further review of a
protest timely filed by Fred Hall & Associates, Inc., on behalf
of Remac, Inc. The protest objects to your decision concerning
the classification of a leather and vinyl tote bag.
The tote bag subject of this protest was entered on April 8,
1993, under subheading 4202.21.9000, HTSUSA, as a handbag with an
outer surface of leather. On August 27, 1993, Customs issued a
Notice of Action/Rate Advance (CF 29), notifying the importer,
the PROTESTANT in this action, that the tote bag was being
liquidated under subheading 4202.92.4500, HTSUSA, which provides
for, among other things, travel bags with an outer surface of
sheeting of plastic. The entry was liquidated on September 17,
1993, and the importer filed this timely protest under 19 U.S.C.
1514 on October 28, 1993. In this protest, the importer contends
that the tote bag is classifiable under subheading 4202.11,
HTSUSA, which provides for trunks, suitcases, vanity cases,
attache cases, briefcases, school satchels, and similar
containers, with outer surface of leather, composition leather,
or patent leather. Specifically, the importer asserts that the
tote bag should be classified as an "other travel bag" with outer
surface of leather under subheading 4202.11.0090, HTSUSA.
The tote bag is identified as style #387. It measures 12
inches x 14.75 inches x 4 inches. It is made of two materials: a
clear (transparent) plastic vinyl material and a leather
material. The leather material forms, in a multicolored
patchwork pattern, the bottom portion of the tote bag, while the
upper portion is made of the clear plastic. The tote also has
leather covered handles.
What is the proper classification for the subject tote bag?
LAW AND ANALYSIS:
There is no dispute in this protest regarding classification
of the subject tote bag under heading 4202, HTSUSA. Rather, the
importer contends that proper classification is under subheading
4202.11, HTSUSA, while Customs has determined that subheading
4202.92, HTSUSA, applies.
Additional U.S. Note 1 of Chapter 42, HTSUSA, provides the
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.
The tote bag at issue fits the description of "travel bag" as set
forth above. Tote bags generally are used to transport from
place to place personal belongings, including clothing. Such
transport could be local, such as between home and office, or
extended, as when clothing and/or other personal belongings are
packed in a tote bag for a picnic, day at the beach, weekend trip
or the like. Tote bags will be classified as travel bags under
either subheading 4202.91, HTSUSA, or 4202.92, HTSUSA, depending
on whether the outer surface consists of leather or of plastic or
textile material. Most tote bags classified by Customs fall
within subheading 4202.92, HTSUSA, as tote bags with outer
surfaces of either plastic (sheeting of plastic) or textile
materials. (For rulings classifying tote bags under subheading
4202.92, HTSUSA, see New York Ruling Letter (NYRL) 893001
(December 22, 1993); NYRL 890197 (September 27, 1993); NYRL
886472 (June 11, 1993); NYRL 885737 (May 21, 1993); Headquarters
Ruling Letter (HRL) 953306 (May 14, 1993); NYRL 884743 (February
27, 1993); HRL 952216 (February 8, 1993); and HRL 951113 (May 19,
The question then for the tote bag at issue is whether the
outer surface consists of leather, plastic, or textile materials.
As stated in the "FACTS" section, above, part of the outer
surface is transparent plastic and part is a leather material.
Customs classified the tote bag as having an outer surface of
plastic, under subheading 4202.92, HTSUSA, on the basis of GRI
3(b). The GRI's are applied to make subheading level
determinations through GRI 6, which provides that such
determinations shall be made according to the terms of the
subheadings, any related subheading notes, and, mutatis mutandis,
to the GRI's themselves. Thus, as between the leather surface
material component and the plastic surface material component,
Customs determined that the plastic component imparted the
essential character to the outer surface material.
We recognize that this determination was reasonable, on the
grounds that the plastic component provides both structure and
utility for the tote bag. However, we believe that
classification of the tote bag according to outer surface
material should be accomplished through GRI 3(c). On the record
before us, we conclude that neither the plastic material nor the
leather material has been established as being sufficiently
predominating to base a finding that either one imparts essential
character to the entire outer surface. While the plastic
material provides structure and utility, the leather material
provides structure and aesthetic appeal. The fact that one or
the other material comprises a greater percentage of the surface
area is not necessarily controlling. On the facts here - where
the leather may comprise the greater percentage of surface area
by a 60% to 40% distribution - it is not conclusive, and
subheading level classification will be made by application of
Under GRI 3(c), classification is made according to the
tariff provision that occurs last in numerical order: "When goods
cannot be classified by reference to 3(a) or 3(b), they shall be
classified under the heading [subheading] which occurs last in
numerical order among those which equally merit consideration."
In applying GRI 3(c) at the subheading level, HRL 953306 is
relevant. There, we classified a tote bag similar to the one at
issue under subheading 4202.92.3030, HTSUSA. Since we could not
conclude from among the three materials that equally merited
consideration - the cotton (vegetable fibers, of cotton), ramie
(vegetable fibers, other), or man-made textile material (other
fibers, man-made) - which material imparted essential character
to the bag's surface according to GRI 3(b), we applied GRI 3(c);
thus, we classified the bag as if its outer surface consisted
entirely of the one surface material that was provided for last
in numerical order within subheading 4202.92, HTSUSA. Since that
material was the material made of man-made textile fibers, the
bag was classified in subheading 4202.92.3030, HTSUSA.
In the instant case, the subheadings which equally merit
consideration are subheading 4202.91, HTSUSA, pertaining to outer
surface of leather, and subheading 4202.92, HTSUSA, pertaining to
outer surface of sheeting of plastic. The subheading pertaining
to the outer surface of plastic occurs last in numerical order.
Thus, we conclude that the proper classification for the tote bag
at issue at the six digit level is subheading 4202.92, HTSUSA.
On the record of this case, there is some confusion as to
the precise character of the leather material. The importer
asserts that it is genuine leather without a plastic coating.
Customs raised the question as to whether the leather is a
composition leather with a plastic coating. The importer
submitted a summary of a laboratory analysis, indicating that the
leather is not plastic-coated. Customs did not subject the
sample tote bag to laboratory analysis; it was visually examined.
Whether or not the leather material is plastic-coated is
irrelevant to the classification determination made above. If it
is not plastic coated, the determination made above applies. If
it is plastic coated, the entire outer surface would be plastic
and classification would remain in subheading 4202.92, HTSUSA.
This protest is DENIED. The tote bag at issue is
classifiable under subheading 4202.92.4500, HTSUSA, as a travel
bag with outer surface of sheeting of plastic, dutiable at a rate
of 20% ad valorem.
In accordance with Section 3A(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 entries 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, Lexis, Freedom of
Information Act, and other public access channels.
John Durant, Director
Commercial Rulings Division