CLA-2 RR:TC:TE 957076 SK
Port Director
U.S. Customs Service
Airport International Plaza
Newark International Airport
Newark, New Jersey 07114
RE: Decision on Application for Further Review of Protest No.
1001-4-102487; classification of plastic bags with tongue and
groove slider closure; 4202.92 v. 3923.21; toiletry/cosmetic
bags; bags reuseable and of durable construction; travel pouch;
HRL 951534 (8/4/92); 954715 (2/17/95); HRL 956666 (5/30/95); HRL
954965 (9/20/93).
Dear Sir:
This is a decision on application for further review of a
protest timely filed by D. Hauser, Inc., on behalf of Dae Do
International Ltd., on April 5, 1994, against your decision
regarding the classification of zipper bags made of plastic
sheeting. At issue is a single entry made at the port of Newark
on April 15, 1993, and liquidated on January 14, 1994.
FACTS:
This protest involves the classification of
toiletry/cosmetic bags of clear 7.5 mil thick polyvinyl chloride
(PVC) plastic sheeting. Each bag features a tongue and groove
slider closure. The smaller bag measures approximately 3-1/2 by
4-1/2 by 3/4 inches and the larger bag measures approximately 6-1/2 by 4-1/2 by 1 inches. Two representative samples were
submitted to this office for examination.
- 2 -
The subject merchandise was entered under subheading
3923.21.0090, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for, in part, plastic sacks
and bags for the conveyance or packing of goods. The protestant
states that the subject articles are only used as retail
packaging; the plastic bags are imported empty and are then
filled with various nail and manicure accessories for sale to
consumers. The protestant argues that the bags will most likely
be discarded after the contents are used.
The merchandise was liquidated under subheading
4202.92.4500, HTSUSA, which provides for, in part, travel, sports
or similar bags with outer surface of sheeting of plastic. Your
contention, as indicated in the Customs Form 6445, is that these
bags are "for prolonged use" and therefore properly classifiable
as cosmetic/toiletry bags of heading 4202, HTSUSA.
ISSUE:
What is the proper classification of the subject
merchandise?
LAW AND ANALYSIS:
Classification under the HTSUSA is in accordance with the
General Rules of Interpretation (GRI's), taken in order. GRI 1
provides that classification is determined according to the terms
of the headings and any relevant section or chapter notes.
The two competing headings in the instant case are heading
3923, HTSUSA, which provides for plastic articles for the
conveyance or packing of goods, and heading 4202, HTSUSA, which
provides for, in pertinent part, various types of travel cases.
In past rulings, this office has consistently determined that
variously styled cosmetic/toiletry bags, of varying sizes, are
classifiable under subheading 4202.92, HTSUSA, as travel, sports
and similar bags. See Headquarters Ruling Letter (HRL) 951534,
dated August 4, 1992; HRL 954965, dated September 20, 1993, and;
HRL 956666, dated May 30, 1995. Therefore, the determinative
issue is whether the subject bags are cosmetic/toiletry bags, or
whether they are merely plastic packaging articles.
In an analogous case, Customs examined the issue of whether
similarly designed plastic bags were classifiable as containers
of heading 4202, HTSUSA, or as articles of "retail packaging" in
heading 3923, HTSUSA. In HRL 954715, dated
- 3 -
February 17, 1994, Customs classified two bags made of 5.5 mil
thick clear plastic sheeting which featured tongue and groove
slider closures under heading 4202, HTSUSA. Although the bags
are bigger than those currently at issue, and used to carry
office, school and related materials, they are substantially
similar to the instant bags in all other material respects. In
HRL 954715, this office noted that "Chapter 42, Note 2(a),
HTSUSA, states that Heading 4202 does not cover bags made of
sheeting of plastics ... not designed for prolonged use (heading
3923)'" [emphasis added]. This office then examined whether bags
made of 5.5 mil plastic sheeting with slider closures were
"designed for prolonged use." We stated:
"the bags have been designed for repetitive use. We
note that
these containers possess tongue and groove closures
with metal
and plastic slides that will withstand many uses. The
plastic
material is of a gauge sufficient to resist rips and
tears ..... The
bags are similar to pencil cases or pouches of plastic
which we
have classified in heading 4202 when designed for
travel. See
HRL 087026, dated July 24, 1990."
We concur with the classification analysis set forth in HRL
954715. As the bags at issue are made from an even thicker
plastic sheeting (7.5 mil) than those classified in HRL 954715,
we believe the subject bags are similarly well-suited for
"prolonged use" and are therefore classifiable as travel bags
within heading 4202, HTSUSA.
HOLDING:
The subject merchandise is classifiable under subheading
4202.92.4500, HTSUSA, which provides for toiletry bags, purses
and similar containers: travel, sports and similar bags: with
outer surface of sheeting of plastic or of textile materials:
other. The applicable rate of duty was 20 percent ad valorem on
the date of liquidation of the subject entry.
As the rate of duty under the classification indicated above
is the same as the rate under which the subject merchandise was
liquidated, you are instructed to deny the protest in full.
A copy of this decision should be attached to the Form 19
and provided to the protestant as part of the notice of action on
the protest. In accordance with Section
- 4 -
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 entry in accordance with this decision
must be accomplished prior to the mailing of the decision.
Sixty days from the date of this 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 to the public via the Diskette Subscription Service,
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division