CLA-2 CO:R:C:G 087169 WAW
Ellen E. Rosenberg, Esq.
Paul A. Horowitz, Esq.
Siegel, Mandell & Davidson
One Whitehall Street
New York, New York 10004
RE: Hosiery Organizer; Travel Accessory for Hosiery
Dear Ms. Rosenberg and Mr. Horowitz:
This is in response to your inquiry dated May 15, 1990, on
behalf of your client, E & B Giftware, Inc., requesting the
tariff classification of a hosiery organizer, Model No. 615PO,
imported from China, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). A sample was submitted for our
examination.
FACTS:
The hosiery organizer contains an interior polyvinyl
chloride (PVC) lining and 12 interior pockets made of PVC. A
transparent PVC sheet comprises the outer surface of the exterior
portion of the article, and a fabric composed of 65 percent
polyester/35 percent cotton has been inserted beneath the PVC
sheeting. PVC piping reinforces the edges of the hosiery
organizer where the PVC sheeting and fabric are joined. The
hosiery organizer has a zippered closure and measures
approximately 8-3/4 inches by 8-3/4 inches when closed.
Counsel for the importer contends that the hosiery organizer
is designed to be used in one's home to organize and store
women's hosiery, and therefore, is classifiable in subheading
3924.90.50, HTSUSA, which provides for tableware, kitchenware,
other household articles and toilet articles, of plastics, other,
other. In the alternative, Counsel states that the hosiery
organizer is classifiable in subheading 4202.92.4500, HTSUSA,
which provides for trunks, suitcases...and similar containers,
other, with outer surface of plastic sheeting or of textile
materials: travel, sports and similar bags, other.
ISSUE:
Is the hosiery organizer classifiable as a travel, sports or
similar bag in subheading 4202.92, HTSUSA, or as a household
article of plastics in subheading 3924.90, HTSUSA.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification is determined according to the
terms of the headings and any relevant section or chapter notes.
The first issue that must be addressed is whether the
hosiery organizer is classifiable in Heading 4202, HTSUSA.
Heading 4202, HTSUSA, includes, inter alia, the following:
. . .traveling bags, toiletry bags, knapsacks, purses, map
cases, cigarette cases, tobacco pouches, tool bags,
sports bags, bottle cases, jewelry boxes, powder cases,
bottle cases, and similar containers, of leather or of
composition leather, of plastic sheeting, of textile
materials, of vulcanized rubber or of paperboard, or
wholly or mainly covered with such materials.
Moreover, Additional U.S. Note 1 to Chapter 42, HTSUSA states:
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 . . .
To be classified under Heading 4202, HTSUSA, an item must be
ejusdem generis with the items listed in the provision. It is
the determination of this office that the hosiery organizer is
the type of bag which is similar to those articles enumerated in
the above provision since it is designed to be used for the
storage and protection of personal effects, namely hosiery,
during travel. Consequently, it is our determination that the
organizer is classifiable under subheading 4202.92, HTSUSA, as a
"travel, sports and similar bags."
Customs has held that the appropriate subheading for goods
classified under Heading 4202, HTSUSA, is determined by the
constituent material of the outer surface. Therefore, the next
issue to be addressed is whether the outer surface of the jewelry
organizer consists of "plastic sheeting or of textile materials."
In HRL 082803, dated December 27, 1988, Customs defined the
term "outer surface," in the context of classifying articles of
Heading 4202, HTSUSA, as "that surface which is both visible and
tactile" to the naked eye. In the instant case, it is our
position that the plastic cover rather than the textile material
forms the outer surface of the jewelry organizer because it is
both visible and tactile.
First, it is the plastic component which constitutes the
tactile surface of the hosiery organizer. The plastic completely
covers the fabric material and is not laminated or otherwise
compressed onto the textile fabric. Upon touching the outer
surface of the article, it is the plastic material which is felt
rather than the textile component.
Second, the plastic surface is also more visible than the
textile material. Legal Note 2 of Chapter 59 provides, in
pertinent part, the following:
Heading 59.03 applies to:
(a) textile fabrics, impregnated, coated, covered or
laminated with plastics, . . . other than:
(1) Fabrics in which the impregnation,
coating or covering cannot be seen with the
naked eye (usually Chapter 50 to 55, 58 or
60); for the purpose of this provision, no
account should be taken of any resulting
change of colour.
The wording of Note 2(a)(1) ("cannot be seen with the naked eye")
is a clear expression by the drafters of the nomenclature that a
significant, if not substantial, amount of material must be added
to a fabric for it to be considered "impregnated, coated, covered
or laminated." Furthermore, the plastics material added to the
fabric must be visibly distinguishable from the fabric without
the use of magnification.
Applying the statutory test to the instant article, using
normally corrected vision in a well lighted room, it is our
determination that the hosiery organizer meets the visibility
requirement of Note 2, Chapter 59. It is apparent, based on our
examination of the article, that the plastic material is present
in a significant amount since it completely covers the fabric and
is substantial in weight and thickness. Additionally, the
plastic is visibly distinguishable from the fabric because it is
not laminated or otherwise compressed onto the fabric which it
covers. It is clear that there is a separate and distinct layer
of plastic material on the outer surface of the hosiery
organizer.
Before the hosiery organizer can be classified as an article
with an outer surface of plastic sheeting, we must determine
whether the plastic cover constitutes "plastic sheeting" as that
term has been defined. To aid in the definition of the terms
plastic "sheet" or "sheeting," Customs has referred to various
dictionary definitions of these terms. For instance, The Random
House Dictionary of the English Language, (1988) has defined the
terms sheet and sheeting as follows:
sheet 2. a broad, relatively thin, surface layer or
covering
sheeting 1. the act of covering or forming into a
sheet or sheets
Webster's Third New International Dictionary of the English
Language, Unabridged (1986) has defined the words sheet and
sheeting as follows:
sheet 5. a broad thinly expanded portion
of metal or other substance
sheeting 1. a material in the form of sheets
* * * b: material (as a plastic) in
the form of continuous film * * *.
In the instant case, the hosiery organizer has a thin
surface layer of PVC covering the textile fabric. Therefore,
based on the above definitions, it is clear that plastic sheeting
is the material which constitutes the outer surface of the
hosiery organizer for tariff purposes.
In sum, the hosiery organizer is the type of merchandise
which is included in Heading 4202, HTSUSA, since it is an
accessory designed to facilitate the storage and protection of
women's hosiery during travel. Moreover, the outer surface of
the hosiery organizer consists of a plastic sheeting material.
Accordingly, it is the position of this office that the subject
merchandise is classifiable in subheading 4202.92.4500, HTSUSA,
as a travel, sports and similar bags, other.
HOLDING:
The hosiery organizer is classifiable in subheading
4202.92.4500, HTSUSA, which provides for trunks, suitcases . . .
and similar containers . . . other: travel, sports and similar
bags, other. Articles classifiable under this subheading are
subject to a duty rate of 20 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division