CLA-2 OT:RR:CTF:TCM H268949 MAB
Director
Customs and Border Protection
Consumer Products & Mass Merchandising CEE
1 East Bay Street
Savannah, Georgia 31401
Attn: Melanie Phillips, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 1704-14-100277: Women’s Hobo Bag (Style No. 37556)
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest 1704-14-100277, dated June 4, 2014, filed by Ms. Kristyn Duchenes, Target Customs Brokers, Inc., on behalf of Target General Merchandise, Inc. (Target). The AFR concerns U.S. Customs and Border Protection (CBP) classification of a Women’s Hobo Bag (Style No. 37556) under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was provided to this office.
FACTS:
The Women’s Hobo Bag (Style No. 37556) is a bag constructed with an outer surface of 100% plastic sheeting and a textile lined interior. It is reinforced along the bottom and corners. The bag closes at top with a zipper. The bag is typical of the hobo bag style in that it is characterized by a crescent shape and measures 14-1/2 inches in length, 6 inches in width, and 9.5 inches in height at its center and 13 inches on each side of its crescent shape. It has one top carrying strap, affixed to either side by means of silver-colored metal hardware, which together measure at 12 inches. The strap is designed to be carried by hand or hung over the shoulder. Its inner lining has a zippered pocket on one inside wall. The bag has four exterior pockets. As is characteristic of the hobo bag style, the instant bag is made of soft, flexible materials and tends to slump or slouch when set down. It comes in a variety of colors including red, gravel, yellow and blue.
The Protest covers three entries of the subject merchandise made from January 23, 2013, through February 2, 2013, under 4202.22.1500, HTSUS, which provides for plastic handbags. The entries were liquidated from December 6, 2013, through December 13, 2013, under subheading 4202.92.4500, HTSUS, which provides for plastic travel, sports and similar bags. This Protest and AFR were filed on June 4, 2014.
ISSUE:
Is the Women’s Hobo Bag classified in subheading 4202.22.1500, HTSUS, as a handbag or in subheading 4202.92.4500, HTSUS, as a travel, sports or similar bag?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on June 4, 2014, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further Review of Protest 1704-14-100277 was properly accorded to protestant pursuant to 19 C.F.R. §174.24(b) because the decision against which the protest was filed is alleged involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts.
Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that the classification shall be determined according to the terms of the headings of the tariff schedule 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 GRIs may then be applied.
The 2013 HTSUS provisions under consideration are as follows:
4202 Trunks, suitcases, vanity cases, attaché 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:
Handbags, whether or not with shoulder strap, including
those without handle:
4202.22 With outer surface of sheeting of plastic or of textile
materials:
4202.22.15 With outer surface of sheeting of plastic …
* * *
Other:
4202.92 With outer surface of sheeting of plastic or of textile
materials:
Travel, sports and similar bags:
4202.92.45 Other
* * *
Additional U.S. Note (AUSN) 1 to Chapter 42 states:
For the purposes of heading 4202, [HTSUS,] the expression "travel, sports and similar bags" means goods, other than those falling in subheadings 4202.11 through 4202.39, [HTSUS,] 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.
* * *
There is no dispute that the instant bag is classified in heading 4202, HTSUS. At issue is the applicable eight-digit subheading. Therefore, we must apply GRI 6 to determine the correct classification of the bag. It states:
For legal purposes, the classification of goods in the subheading of a heading
shall be determined according to the terms of those subheadings and any related
subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also
apply, unless the context otherwise requires.
Subheading 4202.22, HTSUS, provides for “handbags” – a term which is not defined in the HTSUS. A tariff term that is not defined in the HTSUS is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 C.C.P.A. 89, 92 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 134, 673 F.2d 1268, 1271 (1982). In HQ H004184, dated July 2, 2007, CBP set forth several dictionary definitions of handbags, such as “[an] accessory carried primarily by women and girls to hold such items as money, credit cards, and cosmetics” and “a woman’s bag held in the hand or hung from a shoulder strap and used for carrying small personal articles and money.” Thus the common meaning of a handbag is a bag carried by women to hold small personal items such as money, credit cards and cosmetics.
CBP has developed a practice of referring to certain bags in subheading 4202.92, HTSUS, as “tote bags.” See, e.g. J.E. Mamiye & Sons, Inc. v. United States, 85 Cust. Ct. 92, 102 (1980), HQ 082271, dated December 1, 1988 and HQ H004184, dated July 2, 2007. In J.E. Mamiye & Sons, the U.S. Customs Court (predecessor to the U.S. Court of International Trade) stated that “tote bags are utilized by women as second handbags to carry items which do not ordinarily fit within a handbag.” Id. at 102. This definition of tote bags is not binding because the U.S. Customs Court was referring to a provision in the Tariff Schedule of the United States (TSUS), the predecessor to the HTSUS. However, the U.S. Customs Court’s definition closely mirrors AUSN 1 to Chapter 42, which states that “travel, sports and similar bags” means goods, other than those falling in subheading 4202.11 through 4202.39, [HTSUS,] of a kind designed for carrying clothing and other personal effects during travel.”
CBP has established several factors to distinguish handbags of subheading 4202.22, HTSUS, from tote bags of subheading 4202.92, HTSUS. With regard to handbags, CBP has stated that they typically: are smaller than tote bags, are designed to carry small personal items, include an inner lining, are reinforced along the bottom and corners, incorporate a substantial closure such as a zipper closure and include compartments to organize small personal items. See HQ 959062, dated January 28, 1997, HQ 960899, dated September 24, 1999 and HQ H005625, dated November 28, 2007. Regarding tote bags, CBP has stated that a tote bag generally has at least one side which exceeds 12 inches in length and can carry many different sundry items such as food, books or clothing. See HQ 082271, dated December 1, 1988 and HQ 950708, dated December 24, 1991.
The classification of substantially similar merchandise was addressed in HQ H140975, dated April 5, 2011. Specifically, Style DPCI 024-06-2563 (small berry bag) which measured 16” x 3” x 11” and had one strap affixed to either side, was classified as a handbag of subheading 4202.22.15, HTSUS. CBP tested the capacity of the small berry bag (along with two other bags of a different style that were the subject of the ruling) by placing two (2) bottles of water, a pair of women’s shoes, books and other large items into it. Despite having at least one side which exceeded 12 inches in length like a tote bag, CBP ruled that because of its short strap, it was difficult to carry the aforementioned sundry items while properly securing the bag’s top.
“…the small berry bag’s strap was very close and taut across the bag’s opening, making it difficult to maneuver larger items into the bag because of
the narrow space between the strap and the opening. The bulk of large contents caused the sides of the bag to bulge outwards. With multiple items placed into the bag, the bag could not close because the magnetic closure was obstructed by the items. Thus, we conclude that the small berry bag is designed to carry small personal items.
The instant bag is substantially similar to the small berry bag in HQ H140975. Like the small berry bag, it has one side that exceeds 12 inches as does a typical tote bag. However, it also has a short strap that causes it to become taut across the bag’s opening at top when filled with various sundry items (e.g., water bottles, a pair of women’s shoes, books, etc.), thus making it difficult to maneuver them and close the zipper on top because of obstruction. We therefore conclude that the instant bag is designed to carry small personal items and is a handbag of subheading 4202.22.1500.
HOLDING:
Pursuant to GRI 1, through application of GRI 6, the Women’s Hobo Bag (Style No. 37556) is classified under subheading 4202.22.1500, HTSUS, which provides for “[T]raveling bags … and bags … of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Handbags, whether or not with shoulder strap, including those without handle: With outer surface of sheeting of plastic or of textile materials: With outer surface of sheeting of plastic.” The 2013 column one, general rate of duty is 16% ad valorem.
You are instructed to GRANT 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 Customs Form 19, 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, Regulations and Rulings of the Office of Trade 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 Harmon, Director
Commercial and Trade Facilitation Division