H288634

HQ H288634 January 24, 2020 CLA-2 OT:RR:CTF:CPMM H288634 MAB CATEGORY: CLASSIFICATION TARIFF NO.: 4202.92.4500 Port Director U.S. Customs and Border Protection JFK International Airport Building 77, 2nd Floor Jamaica, NY 11430 Attn: Jay Alweis, Import Specialist CEE – Consumer Products & Mass Merchandising Re: Application for Further Review of Protest No. 4701-16-100400: PVC Tote Bag Dear Port Director: The following is our decision regarding the Application for Further Review (AFR) of Protest 4701-16-100400, dated October 18, 2016, filed by Mr. Barry Boren, Law Offices of Barry Boren, on behalf of ACI, Inc. The AFR concerns U.S. Customs and Border Protection’s (CBP) classification of a Polyvinyl Chloride (PVC) Tote Bag under the Harmonized Tariff Schedule of the United States (HTSUS). After repeated requests, protestant did not provide a sample of the subject bag to CBP. We have considered the comments made by protestant’s counsel during a telephone call on January 17, 2020, with members of my staff. During that meeting, protestant withdrew its claim for classification under subheading 4202.92.1000, HTSUSA (Annotated), which provides for insulated cooler bags. FACTS: The subject bag is described on the commercial invoice as a PVC Tote. It is constructed with an outer surface of 100% polyvinyl chloride (PVC) sheeting and a polyester inner lining. There is a zipper located 4 inches above the base of the bag that wraps around its circumference and, when unzipped, expands the height of the bag by 4 inches. When the zipper is zipped closed, the subject bag measures 13-3/4 inches in length, 4-3/4 inches in width, and 10 inches in height. When the zipper is unzipped and the bag is expanded, it is 14 inches in height. The bag has parallel double carrying straps that are 5 inches deep. There is a snap closure at top. The bag comes in a combination of several different colors. Protestant states that within the inner lining there is both an inner pocket to hold small loose items and a microfiber inner divider separating the main compartment into two smaller sections. Protestant also states the bag is substantially constructed. Since protestant did not provide a sample and the quality of some of the photographs provided is poor, we are unable to verify these claims. This Protest and AFR were timely filed on October 18, 2016, and cover one entry of the subject merchandise made on August 13, 2015, under subheading 4202.92.1000, HTSUSA, which provides for insulated cooler bags. The entry was liquidated on April 29, 2016, under subheading 4202.92.4500, HTSUSA, which provides for plastic travel, sports and similar bags. Protestant now submits that the subject bag should be classified under subheading 4202.22.1500, HTSUSA, as a handbag with an outer surface sheeting of plastic. ISSUE: Is the PVC Tote 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 October 18, 2016, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further Review of Protest 4701-16-100400 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 to involve 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 2015 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 plastics 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. * * * 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 Headquarters Ruling Letter (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 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 typically, they 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. Protestant states that the primary purpose of the subject bag is its use when zipped as an everyday handbag. Protestant asserts that women’s handbags have become larger in size over the years so women can bring one pair of shoes to work while wearing a different pair to travel to work. Protestant explains that with the subject bag, women will carry only one bag to work and not two; therefore it cannot be an auxiliary tote bag. Protestant further claims that although the bag is large enough to carry one pair of shoes (in addition to 

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 October 18, 2016, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further Review of Protest 4701-16-100400 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 to involve 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 2015 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 W