CLA-2 CO:R:C:G: 085559 DPS
Mr. Mark McLaughlin
The Pack America Corp.
630 Fifth Avenue
Suite 2260
New York, N.Y. 10111
RE: Shopping Bags and Garment Bag
Dear Mr. McLaughlin:
Mr. Elison's letter of August 18, 1989, on behalf of Pack
America Corp., to our New York office has been referred to this
office for reply concerning the tariff classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), of 4 styles of shopping bags, and an EVA plastic
garment bag. This letter is being directed to you pursuant to a
telephone conversation in which you informed a member of my staff
that Mr. Elison is no longer with your company, and that you have
assumed his responsibilities. Samples of the subject merchandise
were submitted with the ruling request.
FACTS:
The merchandise requiring classification consists of five
items, four of which are shopping bags made primarily of paper,
and are described as follows:
(1) A paper shopping bag with a base width of
approximately 40 cm., made of laminated kraft
paper. The composition of the laminated
paper is 15% OPP laminate and 85% paper.
The bag has handles which are made of cellophane.
(2) A shopping bag with a base width of approximately
34 cm., made exclusively of paper with twisted
paper handles . The merchant's name is printed on
the bag.
(3) A paper shopping bag with polypropylene handles and a
base width of approximately 42 cm., and the merchant's
name printed on the side of the bag
(4) A paper shopping bag laminated with an OPP film.
The laminated paper is 5% laminate film and 95%
paper. The handles are made of acrylic cord with
a paper core. This bag has a base width of 42 cm.
and the merchant's name is printed on the side of
the bag.
The fifth article is a garment bag, intended for use by retailers
who package suits in it to present to the customer. The importer
states that it is not for resale, nor for use as luggage. It is
made of EVA plastic. Tests performed on the submitted sample by
the Customs laboratory indicate that the garment bag has an ASTM
thickness of 4.10 mils. The zipper fabric of the article is
polyester.
ISSUES:
(1) Whether the paper and laminated paper shopping bags are
classifiable as other sacks and bags of paper under Heading
4819, HTSUSA, or as other articles of paper under Heading 4823,
HTSUSA.
(2) Whether the plastic garment bag is classifiable as an
article for the conveyance or packing of goods, of plastics,
other, under subheading 3923.90.0000, HTSUSA, or as a travel bag
with outer surface of plastic sheeting, under subheading
4202.92.4500, HTSUSA.
LAW & ANALYSIS:
The General Rules for the Interpretation of the Harmonized
System (GRI's) govern classification under the Harmonized Tariff
Schedule. According to GRI 1, the primary consideration in
determining whether merchandise should be classified in a heading
should be given to the language of the heading and any relevant
chapter or section notes, and, provided such headings or notes do
not otherwise require, according to the remaining GRI's, taken in
order. With regard to the shopping bags, the two headings at
issue are 4819 and 4823, which provide as follows:
(a) 4819, HTSUSA, Cartons, boxes, cases, bags
and other packing containers, of paper,
paperboard, cellulose wadding or webs of
cellulose fibers; box files, letter
trays and similar articles, of paper or
paperboard of a kind used in offices,
shops or the like:...
(b) 4823, HTSUSA, Other paper, paperboard,
cellulose wadding and webs of cellulose
fibers, cut to size or shape; other
articles of paper pulp, paper,
paperboard, cellulose wadding or webs of
cellulose fibers:...
An examination of the headings set forth above indicates
that bags made of paper that are used as "packing containers" in
"offices, shops or the like," are classifiable in 4819. The
Explanatory Notes to the HTSUSA constitute the official
interpretation of the tariff at the international level. The
Explanatory Notes to Heading 4819, HTSUSA, state, in pertinent
part that this heading:
[C]overs various kinds and sizes generally used
for the packing, transport, storage or sale of
merchandise, whether or not also having a
decorative value. The heading includes cartons,
boxes, cases, bags, cones, packets, sacks,
paperboard drums (containers)...
The articles of this group may be printed, e.g.,
with the name of the merchant, directions for use,
illustrations....
In applying the HTSUSA Heading and Explanatory Note language
to the subject bags, they appear to fall squarely with Heading
4819. The bags are given by merchants to customers for the
packing of purchased merchandise. Three of the four samples have
the merchant's name printed on the side of the bag. The bags are
of ample size to hold merchandise and with their reinforced
handles, are constructed to facilitate carrying. As such, they
are classifiable as paper bags or sacks within Heading 4819.
The Explanatory Notes to Heading 4823, HTSUSA, state that
the heading includes "paper and paperboard not covered by any of
the previous headings of this Chapter:...." In Headquarters
Ruling Letter (HRL) 084847, dated October 6, 1989, similar coated
paper bags were classified under Heading 4823. However, the bags
classified in HRL 084847 are distinguishable from the subject
merchandise. They were "Batman Bags," sold as merchandise, and
used as a form of wrapping paper, not used for the packing,
transport or sale of merchandise contemplated by Heading 4819.
Accordingly, we distinguish the shopping bags at issue here,
which are classifiable under Heading 4819, from the decorative
"Batman" bags classified under Heading 4823 in HRL 084847.
Plastic Garment Bag
In HRL 083612, dated May 15, 1989, guidelines for the
classification of plastic garment bags, similar to the article at
issue, were set forth. Briefly stated, garment bags that are
constructed of 4 mil or thicker vinyl are considered to be
"substantially constructed" so as to warrant classification as a
form of luggage in Heading 4202, HTSUSA. Those garment bags
which measure under 4 mil are classified under Heading 3923,
HTSUSA, as articles for the conveyance or packing of goods, of
plastics. These bags are not designed for repetitive use and are
considered to be of flimsy construction. In determining the
thickness of the garment bags, Customs uses the formula
recommended by the American Society for Testing & Materials
(ASTM). (See HRL 080214 dated September 16, 1987, and HRL 078780
dated March 5, 1987).
With regard to the subject garment bag, Customs laboratory
tests indicate that the garment bag has a thickness of 4.1 mil.
Applying the guidelines set forth in the above cited Headquarters
rulings, we find that the instant merchandise is classifiable
under subheading 4202.92.4500, HTSUSA, which provides for travel,
sports and similar bags, with outer surface of plastic sheeting
materials, other.
HOLDING:
The subject paper shopping bags with a base width of 40 cm.
or more are classifiable as sacks and bags, having a base width
of 40 cm. or more, other, in subheading 4819.30.0040, HTSUSA.
The shopping bag with the base width of under 40 cm. is
classifiable under subheading 4819.40.0040, HTSUSA, the provision
for other sacks and bags, including cones, other. Merchandise
classified in either of these subheadings is subject to a duty
rate of 5.3 percent ad valorem.
The plastic garment bag at issue, with a thickness of 4.1
mil, is classifiable as a travel bag with an outer surface of
plastic sheeting materials, in subheading 4202.92.4500, HTSUSA.
Items classified under this provision are subject to a duty rate
of 20 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division