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HQ 955515

May 5, 1994

CLA-2 CO:R:C:T 955515 BC


TARIFF NO.: 4202.92.4500

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)

Dear Sir:

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?


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 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.

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, 1992).)

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 GRI 3(c).

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

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