CLA-2 RR:CR:TE: 962363 GGD
Jason M. Waite, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman, LLP
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
RE: Modification of NY D80975; “Display Bags;” Clear, Unembossed, PVC Retail
Packaging Less than 4 Mils Thick Not Designed for Prolonged Use; Odd Shapes,
Cutouts, Hangers, Tabs, Indicative of Single Use; Bags of Kind Normally Sold on
Own Merits at Retail as Traveling/Toiletry Bags and of Kind Normally Sold as
Retail Packaging with Contents
Dear Mr. Waite:
In New York Ruling Letter (NY) D80975, issued September 9, 1998, to Southern Overseas on behalf of The Murphy Group, Inc., Customs classified four articles described as “display bags” in subheading 4202.92.4500, HTSUSA, the provision for “Trunks... traveling bags, toiletry bags...and similar containers...: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” You subsequently requested reconsideration of the ruling. We have reviewed NY D80975 and, with respect to one of the bags, have found it to be in error. Therefore, this ruling modifies NY D80975.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c) ), notice of the proposed modification of NY D80975 was published on December 8, 1999, in the Customs Bulletin, Volume 33, Number 46.
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FACTS:
In your letter dated November 12, 1998, requesting reconsideration of NY D80975, you take issue with Customs classification of two of the four bags (hereinafter identified as item numbers one and four), conceding that the other two bags are properly classified in subheading 4202.92.4500, HTSUSA. The two bags at issue are imported without contents and are claimed to be ordinary vinyl packaging materials that are included (at no cost) with the purchase of the article or articles they eventually will
contain when sold at retail. Sample item number one is a bag or pouch which resembles an envelope. The bag is essentially composed of clear, unembossed, polyvinyl chloride (PVC) plastic sheeting. The item measures approximately 12 inches in width by 6-1/2 inches in height, and the plastic sheeting material measures approximately 9.5 thousandths of an inch (9.5 mils) in thickness. Item number one features a flap with a metal snap closure. The article also has a top center cutout (which measures approximately 2 inches in length by 1/4 inch in width) through which a flimsy plastic hanger protrudes. A paperboard card which advertises the “Wonderbra® convertible backless bra” is included in the envelope (as an indication of the merchandise to be added after importation).
Sample item number four is a cylindrically-shaped, drawstring utility bag that is essentially composed of clear, unembossed, PVC plastic sheeting. The item resembles a small duffel bag and measures approximately 7-1/4 inches in height by 3 inches in diameter. The plastic sheeting material measures approximately 7.2 mils in thickness. Item number four features a top that may be drawn closed by means of a braided cord which passes through eight eyelets. A stitched side seam extends the full height of the bag and the bag’s top and bottom have stitched PVC edging.
ISSUE:
Whether the articles are classified under heading 4202, HTSUSA, which covers, in part, traveling bags, toiletry bags, and similar containers; or under heading 3923, HTSUSA, as articles for the conveyance or packing of goods, of plastics.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized
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Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
Among other merchandise, chapter 42, HTSUSA, covers travel goods, handbags and similar containers. Among other items, heading 4202 provides for “...traveling bags, toiletry bags...and similar containers.” The exemplars named in heading 4202 have in common the purpose of organizing, storing, protecting, and carrying various items. In pertinent part, legal note 2(A)(a) to chapter 42, HTSUSA, states:
...heading 4202 does not cover:
Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923) (Emphasis added.)
Chapter 39, HTSUSA, covers plastics and articles thereof. In pertinent part, note 2(ij) to chapter 39, HTSUSA, states that “[t]his chapter does not cover...trunks, suitcases, handbags or other containers of heading 4202.” Among other merchandise, heading 3923, HTSUSA, covers “Articles for the conveyance or packing of goods, of plastics....” The EN to heading 3923 indicate that the heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products, including sacks and bags. The EN also state that the heading excludes containers of heading 4202.
You essentially contend that, because item numbers one and four are designed, intended, and likely to be used principally as retail packaging for unique products, they are not designed for prolonged use and are excluded from classification under heading 4202, HTSUSA. You cite to several Headquarters Ruling Letters (HQ), including HQ 960009 and HQ 959679, both of which concern the issue of whether certain containers composed of PVC plastic sheeting are designed for prolonged use. Although intended use is mentioned in each of the cited rulings, you suggest that Customs has based these and other classification determinations upon whether plastic bags that are capable of reuse are intended to be reused. We do not agree.
Customs is often presented with other subjective criteria to consider, and may weigh the uncertain relevance of whether a bag’s seams are heat-sealed or sewn; whether eyelet holes are reinforced with metal or heat-sealed grommets; whether a bag has drawstring, snap, or zipper closures; or features handles, piping, printing, opaque sides; etc. While viewing certain features such as hangers, hanger holes or cutouts, plastic tabs with holes for hanging display, cutouts permitting pre-purchase handling of contents, odd/awkward shapes, etc., as indications that retail packaging bags are not
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designed for prolonged use, Customs has found that determinations as to whether such plastic bags are “not designed for prolonged use” are properly based upon whether or not a bag: 1) is of a kind normally sold at retail on its own merits as a traveling or toiletry bag; and 2) is of a kind normally sold at retail as packaging with contents.
These were the significant factors in HQ 960009, issued October 16, 1997, in which this office classified several bags under heading 4202, finding that “...the bags are not of a kind normally used in the packaging of toiletries/cosmetics and are of a kind sold at retail on their own merits as travel or toiletry bags.” We looked to the same determining factors in HQ 959679, issued May 8, 1997, and found that “[t]he bag is of a
kind sold at retail on its own merits....It is similar to PVC travel bags either sold on their own or with other personal effects, cosmetics or toiletries. It is not of a disposable kind normally used to temporarily hold its contents.”
In order to more objectively distinguish bags of clear, unembossed, PVC plastic sheeting that are not designed for prolonged use from those that are, Customs will additionally consider the thickness of a bag’s plastic sheeting as a factor in the classification of bags of a kind both sold on their own merits and sold as packaging. Customs has long classified under heading 4202, garment bags composed of embossed vinyl or PVC plastic sheeting which measures four mils or more in thickness, finding that such thickness usually denotes a durably constructed article that is designed for prolonged use and travel. Customs has also determined that garment bags composed of embossed vinyl or PVC plastic sheeting which measures less than four mils in thickness are generally less durable and not designed for prolonged use. Those bags have been classified under headings 3923 and 3924, HTSUSA. See HQ 962225, issued May 21, 1999, HQ 961092, issued March 24, 1998, HQ 960411, issued October 7, 1997, HQ 955470, issued February 17, 1994, and HQ 082463, issued September 25, 1989. Since embossed vinyl and PVC garment bags are not normally used to display articles sold at retail, Customs does not generally consider the features indicating that clear PVC bags are not designed for prolonged use (hangers, hanger holes, cutouts, etc.) to be applicable to garment bags.
Although the Customs laboratory has concluded that the formula recommended by the American Society for Testing and Materials (ASTM) D 1593, “Specification for Nonrigid Vinyl Chloride Plastic Sheeting,” must be used to determine the thickness of embossed plastic sheeting, the laboratory has further advised that for routine testing (e.g., determining the thickness of unembossed PVC plastic sheeting), standard dead weight methods may be used. See ASTM D 1593 “Test Methods” section 10.1.3.
Therefore, to determine the classification of bags, sacks, or pouches that are composed of clear, unembossed, PVC plastic sheeting, Customs will consider plastic sheeting which measures less than 4 mils in thickness to be generally indicative of an
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article that is not designed for prolonged use. Customs will also consider plastic sheeting which measures 4 mils or greater in thickness to be generally indicative of a container that is designed for prolonged use to carry personal effects (UNLESS the container is not of a kind normally sold at retail on its own merits; and ABSENT single use indicators such as hangers, cutouts, tabs, odd shapes, etc. noted above).
In this case, despite the fact that the PVC plastic sheeting of item number one measures 9.5 mils in thickness, the presence of the top center cutout and flimsy plastic hanger indicates that the bag is a container for goods that will be displayed on a rack for
sale at retail. Although the thickness of the plastic sheeting indicates durability, the package is designed to withstand any number and variety of pre-sale manipulations by shoppers, and not for prolonged use after sale. If imported separately, we would consider the plastic hanger itself to be an article for the conveyance or packing of goods. In this case, the hanger is designed to suspend the bag with which it is imported and help to display a product. The hanger and bag components would not normally be offered for sale in separate parts. Together they comprise a composite article, the essential character of which is imparted by the bag component. The complete “display bag” is not of a kind normally sold at retail on its own merits, but is of a kind that is sold at retail with specific contents. Item number one is not designed for prolonged use (after its original contents have been removed for consumption), and it is therefore excluded from heading 4202 by note 2A(a) to chapter 42, HTSUSA. Item number one is properly classified in subheading 3923.29.0000, HTSUSA.
Although item number four may be intended merely for use as unique retail packaging to favorably present a product, enhance the likelihood of its sale, and carry it from store to home, the bag is of a kind normally sold at retail on its own merits as a traveling or toiletry bag. The item is not of a kind normally sold at retail as packaging with its contents and it is substantially constructed of plastic sheeting which measures 7.2 mils in thickness. Unlike item number one, this bag has no cutout, hanger, or other feature which would indicate that the bag is not designed for prolonged use. We find that item number four is similar to the containers of heading 4202, HTSUSA, and that it is classifiable thereunder. The article is thus precluded from classification under heading 3923 by note 2(ij) to chapter 39, HTSUSA. Item number four is classified in subheading 4202.92.4500, HTSUSA.
HOLDING:
The “display bag” identified as item number one is classified in subheading 3923.29.0000, HTSUSA, the provision for “Articles for the conveyance or packing of goods, of plastics...: Sacks and bags (including cones): Of other plastics.” The general column one duty rate is 3 percent ad valorem.
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The “display bag” identified as item number four is classified in subheading 4202.92.4500, HTSUSA, the provision for “Trunks...traveling bags, toiletry bags...and similar containers...: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” The general column one duty rate is 20 percent ad valorem.
NY D80975, issued September 9, 1998, is hereby modified with respect to the classification of item number one.
NY D80975, issued September 9, 1998, is hereby modified with respect to the classification of item number one. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division