CLA2 RR:TC:TE 960411 CAB

Amy J. Johannesen, Esq.
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, NY 100368901

RE: Revocation of New York Ruling Letter (NY) A86324 relating to the classification of a garment bag; Heading 3923; Heading 4202

Dear Ms. Johannesen:

This is in response to a request for reconsideration of New York Ruling (NY) A86324, dated February 14, 1997, on behalf of your client I. Shamah & Sons, Inc. The request was for a tariff classification ruling pursuant to the Harmonize Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to New York Customs. After further review of NY A86234, Customs Headquarters is of the opinion that it is in error and should be revoked. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625) as amended by section 623 of Title VI (Customs Modernization of the North American Tree Trade Agreement Implementation Act, P.L. 103182, 107 Stat 2057, 2186 (1993), hereinafter section 625, notice of the proposed revocation of NY A86324 was published on July 23, 1997, in the Customs Bulletin, in Volume 31, Number 30. The following represents our position. FACTS:

The samples at issue are various styles of garment bags. Style No. 04730 is comprised of black embossed vinyl material containing the "Nordstrom" logo with gold vinyl trim. The vinyl averages 2.66 mils in thickness. The article contains a top opening through which a hanger may be placed, a front opening with a zipper closure, and gussets at the side. The edges of the bag are sewn together. Style No. SCP1 is made up of red embossed vinyl featuring the "Shirt Corner Plus" logo and red vinyl trim. The bag contains a top opening through which a hanger may be placed and a front opening with zipper closure. The average thickness of the vinyl composing this bag is 3.08 mils. Style No. SY3 is composed of blue embossed vinyl featuring blue vinyl trim. The bag contains a top opening through which a hanger may be placed and a front opening with zipper closure. The vinyl of which this style is made of averages 3.71 mils in thickness. Style No. SBP0021 is comprised of embossed vinyl featuring the "Neiman Marcus" logo and gray trim. This bag contains a top opening through which a hanger may be placed and a front opening with a zipper closure. The vinyl for this style averages 3.64 mils in thickness.

Each bag also contains a clear plastic window for placement of an identification tag for purchases held for pickup or delivery to a specific consumer. These bags are sold to retail stores for distribution to consumers to carry home purchases after the point of sale.

In NY A86234, Customs classified the subject bags in subheading 4202.92.45, HTSUSA, which is the provision for travel bags with an outer surface of plastic sheeting materials. You assert that the subject bags are properly classifiable in subheading 3923.90.00, HTSUSA, the provision for articles for the conveyance or packing of goods, of plastics.

For the purposes of determining the proper tariff classification for bags embossed of plastic sheeting, pursuant to the American Society for Testing Materials (ASTM) D 1593, Customs tested each bag twice to determine the thickness of the vinyl comprising the bags. In both instances, the vinyl making up each bag tested below 4 mils in thickness. Independent laboratory test results were also submitted to Customs which concluded that the thickness of the vinyl comprising the bags was below 4 mils. ISSUE:

Whether the subject bags are classifiable in subheading 3923.90.00, HTSUSA, or subheading 4202.92.45, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, taken in order.

The subject bags are potentially classifiable under two different headings. Heading 4202, HTSUSA, which provides for inter alia suitcases, traveling bags, and similar containers. Heading 3923, HTSUSA, provides for other articles for the conveyance or packing of goods of plastics.

Previously, Customs has classified garment bags that are constructed of 4 mils or thicker vinyl under Heading 4202, HTSUSA, as luggage. Usually, bags comprised of vinyl more than 4 mils in thickness denotes an article that has a durable construction and is designed for prolonged use and travel. Generally, garment bags that are comprised of vinyl less than 4 mils in thickness indicates a flimsy bag which is not designed for repetitive use. These bags have been classified under Heading 3923, HTSUSA, the provision for articles used for the conveyance and packing of goods.

In determining the thickness of garment bags, Customs has consistently used the formula for determining the gauge of embossed nonrigid vinyl chloride film as recommended by ASTM D 1593. See, Headquarters Ruling Letter (HQ) 955470, dated February 17, 1994; HQ 085559, dated April 13, 1990; HQ 083612, dated May 15, 1989. In this case, Customs Laboratory Report No. 29611215004, dated December 4, 1996, and Customs Laboratory Report No. 39650579004, dated November 21, 1996, and Customs Laboratory Report No. 39710205001, dated January 24, 1997, all concluded that the thickness of the vinyl comprising the subject garments bags was below 4 mils. Moreover, an independent laboratory, SGS U.S. Testing Company, Inc. performed test ASTM D 1593 on the subject garment bags on July 25, 1996, and also arrived at findings consistent with the Customs laboratory conclusions. You assert that the instant garment bags are designed, like a shopping bag, for consumers to use to protect their purchases during conveyance from the store to the home. You also state that the subject bags are neither designed nor marketed for prolonged use. Finally, you contend that the vinyl would not withstand repeated uses without tearing due to its thin construction.

In light of prior rulings which classified garment bags comprised of vinyl measuring less than 4 mils in thickness under Heading 3923, HTSUSA, the laboratory reports which concluded that the subject garment bags are comprised of vinyl less than 4 mils in thickness, and the fact that the bags are not designed for prolonged, repetitive use, it is clear that they are properly classifiable under Heading 3923, HTSUSA.

HOLDING:

Based on the foregoing, Style Nos. 04730, SCP1, SY3, and SBP0021 are classifiable in subheading 3923.90.00, HTSUSA, the provision for articles for the conveyance or packing of goods, of plastics; sacks and bags; of other plastics. The applicable General rate of duty is 3 percent ad valorem.

NY A86324 is revoked.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current applicability of any import restraint requirements.

In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1) of the Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,
John Durant, Director
Commercial Rulings Division

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