CLA-2 CO:R:C:R:T 953286 jlj
Ms. Carolyn Dzwonar
Heyman Corporation
6045 W. Howard St.
Niles, Illinois 60648
RE: Classification of Christmas gift packs consisting of cotton
knit briefs in a decorative plastic bag
Dear Ms. Dzwonar:
In your letter of January 11, 1993, you requested tariff
classifications under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) for two Christmas Gift Packs to
be manufactured in Hong Kong. You submitted a sample of each
along with your letter.
FACTS:
The samples submitted are Style 0801 and Style 0301. Style
0801 is a girls' Christmas Gift Pack containing three pairs of
girls' 100 percent knit cotton briefs in assorted Christmas
prints. The briefs feature an elasticized waist with the words
"Osh Kosh" at frequent intervals on the waistband, a small
centered bow at the waist and elasticized leg openings. The
sizes offered are 2, 4, 6, 8 and 10.
Style 0301 is a boys' Christmas Gift Pack containing two
pairs of boys' 100 percent knit cotton briefs in assorted
Christmas prints. The briefs feature an elasticized waist with
the words "Osh Kosh" at frequent intervals on the waistband and a
fly front. The sizes offered are 3, 4, 5, 6, 7, 8 and 10.
The package used to hold each set of briefs is a rectangular
clear vinyl bag with a colored, scalloped opening. A knotted
drawstring with a sliding bead is used to secure the opening.
The vinyl bags are not specially shaped or fitted to contain the
briefs.
ISSUE:
How are these Christmas Gift Packs classified under the
HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRIs), taken
in order. GRI 1 provides that classification shall be according
to the terms of the headings and any relevant section or chapter
notes.
We must first determine whether the plastic bags are
classified separately or with their contents. GRI 5, HTSUSA,
which covers cases, containers and packing materials, reads as
follows:
(a) Camera cases, musical instrument cases, gun cases,
drawing instrument cases, necklace cases and similar
containers, specially shaped or fitted to contain a
specific article or set of articles, suitable for long-
term use and entered with the articles for which they
are intended, shall be classified with such articles
when of a kind normally sold therewith. This rule
does not, however, apply to containers which give the
whole its essential character.
(b) Subject to the provisions of 5 (a) above, packing
materials and packing containers entered with the goods
therein shall be classified with the goods if they are
of a kind normally used for packing such goods.
However, this provision does not apply when such
packing materials or packing containers are clearly
suitable for repetitive use.
GRI 5 (a) does not apply to the plastic bags because they
are not specially shaped or fitted to contain the panties.
GRI 5 (b) applies if the bags are found to be not suitable for
repetitive use.
In several court cases under the Tariff Schedules of the
United States (TSUS), the courts discussed similar issues. While
the TSUS is a predecessor of the HTSUSA, the fact that the cases
concern an interpretation of a specific term or phrase of a
tariff makes it reasonable to apply the same interpretation to
another tariff, i.e., the HTSUSA, when the terminology is
essentially the same and used in a similar manner.
In American Express Co. v. United States, 69 Cust. Ct. 209,
C. D. 4935 (1972), the court held that suitability means
actually, practically and commercially fit for such use. The
court further held that suitability does not require chief use,
but does require substantial use.
In United States v. F. W. Meyers & Co., Inc., 60 CCPA 134,
C.A.D. 1097 (1973), the court also held that suitable for use
means actually, practically and commercially fit for such use.
It stated that suitability does not require that the merchandise
be chiefly used for the stated purpose, but it does require more
than evidence of a casual, incidental, exceptional or possible
use.
In Holly Stores, Inc. v. United States, 2 CIT 278, Slip Op.
81-117 (1981), the court discussed the TSUS equivalent of GRI 5,
General Headnote and Rule of Interpretation 6 (b), TSUS.
The court held that, in General Headnote 6 (b), the phrase
"designed for, or capable of, reuse" contemplates that the term
"reuse" be used in the practical commercial sense of reuse for
transportation purposes and not for incidental or fugitive uses.
Following the rationale of these cases, it is reasonable to
conclude that the instant plastic bags are not suitable for
repetitive use in the Customs sense and that the bags must be
classified with their contents pursuant to GRI 5 (b).
The girls' Christmas Gift Pack is classified under the
provision for girls' cotton briefs and panties, in subheading
6108.21.0020, HTSUSA.
The boys' Christmas Gift Pack is classified under the
provision for boys' cotton underpants and briefs, in subheading
6107.11.0020, HTSUSA.
HOLDING:
The girls' Christmas Gift Pack is classified in subheading
6108.21.0020, HTSUSA, textile category 352, dutiable at the rate
of 8.1 percent ad valorem. The boys' Christmas Gift Pack is
classified in subheading 6107.11.0020, HTSUSA, textile category
353, dutiable at the rate of 7.9 percent ad valorem.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importation of this merchandise to determine the current
status of any import restraints or requirements.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Inasmuch
as part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U. S. Customs Service, which is available for
inspection at your local Customs office.
Sincerely,
John Durant, Director
Commercial Rulings Division