CLA-2-95:RR:NC:3:341 A86324
Ms. Amy J. Johannesen
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, N.Y. 10036-8901
RE: The tariff classification of garment bags ( garment
carriers), from China, HTSUSA 4202.92.4500
Dear Ms. Johannesen
In your letter dated August 2, 1996, supplemented October
23, 1996, you requested a tariff classification decision for four
items described as garment bags. The request is on behalf of I.
Shamah & Sons, Inc., dba VIPAC.
The samples submitted are basic garment carriers
manufactured of Polyvinyl Chloride( PVC), embossed or
calendared, plastic sheeting. The bags are identified as styles
04730, SCP1, SBP0021 and SY3. Each item is a zippered garment
bag of the kind normally sold at retail as a traveling and/or
storage bag for one or more garments and are alternately known as
"garment bags" or "garment carriers". Such bags are usually
packaged in polyethylene packaging with printed paper headers and
sold at retail as rack goods. The bags do not have handles and
are designed to be carried with the person by means of a clothes
hanger which will protrude from the top. Each has a full length
nylon coil zipper closure on the front. The zipper tape is
securely sewn to the turned and stitched edge of the bag by
means of nylon thread and PVC binding. All other edges are
reinforced with stitched binding. All binding is of matching
color as the plastic sheeting except style 04730 which has a
contrasting gold binding with a black sheeting. The plastic
sheeting of styles SY-3, 04730, and SCP-1 is embossed to impart a
simulated nylon textile material. The sheeting of style SBP-0021
is processed to have a crinkle pattern which simulates a leather
material. Style 04730 has a three inch side gusset and appears
to be designed to contain either more than one garment or a large
item such as a coat. It is imprinted with the name " Norstrom "
which is indicative that a better quality garment will be carried
within. The balance of the bags have no gusset and appear to be
designed to carry one garment. Style SP 0021 is printed with the
name "Neiman Marcus" which is also indicative that a better
quality garment will be carried within. SCP-1 is imprinted with
the name "Shirt Corner Plus, the Complete Men's Store". Style
SY-1 has no imprint. The zipper pulls and sliders of each are
molded with the name "VIPAC" and are of matching color as the
plastic sheeting. The samples have been destroyed in
examination.
The instant styles are representative of items sold by VIPAC
to various retail establishments to be given to their retail
customers of usually better quality garments after purchase of
the garment. The imprinted name of the retail business serves
as a continuing advertisement to the public each time the bag is
carried which is the intended purpose of the imprint. In the case
of the better quality names, it is synonymous with a person
carrying a bag bearing a recognized trademark. The bags are
particularly distinct from the usual type of disposable
polyethylene packaging covers within which a retail business
would place a garment(s) prior to the sale of the garment. The
bags are designed to provide continuing storage and protection
while providing a degree of portability for the garment(s)
contained within.
In your letter of August 2, 1996, you stated that the bags
are of a flimsy construction and not designed for repetitive
use. The articles are said to be classified within tariff
number 3923.90.00, Harmonized Tariff System of the United States,
Annotated (HTSUSA, which provides, in part, for "Articles for the
conveyance or packing of goods, of plastics; ..."
The question of bags and containers being articles classified
within heading 3923 has been addressed in several Customs ruling
decisions. Decisions such as HQ 958174, January 31, 1996, 955660
September 27, 1994, 955047, October 6, 1994, and 954072,
September 2, 1993. These decisions emphasize that articles which
are said to be classified in Heading 3923 are subject to Chapter
39, Legal Note (2) (ij) which excludes articles of Heading 4202,
HTSUSA, from classification within Chapter 39. The decisions,
especially 958174 and 955660 which dealt with articles of
substantially the same construction and purpose as the instant,
found the articles to be of a kind similar to those of Heading
4202 because they are in themselves a personal effect ( property)
and are bags which provide organization, storage, protection and
transport to a personal effect during travel. The decisions note
that Heading 3923 provides for cases and containers of bulk goods
and commercial goods and not personal items. The instant garment
bags are not such articles because they are designed to contain a
the personal effect which is not a commercial good since after
the point of purchase the garment is no longer in the stream of
commerce. Imperial Packaging Corp. v. United States,, 2 CIT 250,
Slip Op 81-111, is noted. In addition, the bags are of a kind
sold at retail on their own merits and which also become
personal effects after the point of purchase.
The remaining question is whether or not the bags are of a
kind classified within Heading 4202, HTSUSA. It has been an
established fact that the classification within Heading 4202 is
the broad spectrum of articles enumerated. The position of the
court in Totes, Inc. v. United States, Slip Op 94-154, is
particularly pertinent. In that decision the Court held that an
article is of a kind similar to those of heading 4202 provided it
exhibits the characteristics of the Heading taken as a whole.
The Court found that if an article possessed characteristics such
as organization, storage, protection, and to carry, it would be
considered to be of a kind similar to those of the Heading. It
is significant to note that the Court placed a minimal value on
the ability to transport or carry the contents as well as the
quality of the article. Although the ability to transport or
carry the personal effect within would direct attention to the
article being a traveling bag as described in chapter 42,
Additional U.S. Note 1 and classified within subheading 4202.92.
The Court, in Totes, utilized the same garment bags as an
example to demonstrate its reasoning. (Totes, at page 14) The
decision and comment regarding garment bags are applicable to the
instant.
It has been a consideration that an imported article must be
of a construction suitable for travel bag to be classified within
that subheading. Although, the position of the Court in Totes
does minimize the reliance. The only legal restriction actually
provided in the tariff is Legal Note 2. (A)(a) which excludes "
Bags made of sheeting of plastics, whether or not printed, with
handles,, not designed for prolonged use ( Heading 3923)". The
Legal Note is directed toward bags which have handles, are of a
kind classified within Heading 3923 as discussed in the citations
above, and are "...not designed for prolonged use", (emphasis
added).
There is no evidence of a commercial interpretation,
Congressional intent or other tariff definition as to the
meaning of "prolonged" as it appears. Nor is there any
indication in the tariff that the term is to be applied to bags
other than those of the kind classified in Heading 3923 which are
bags not designed for personal use after the stream of commerce.
Customs has previous utilized the standards for quality
assurance as provided in American Society for Testing Materials
(ASTM) 1593-81, Table 1, type 1 ( calendared sheeting of 90
percent vinyl chloride). It is noted that the Table 1 has a
quality standard for both sheeting found to be over and under 3
mil in thickness. The thickness is only part of the methodology
in determining the ASTM quality requirement. The ASTM
methodology for determining thickness is prescribed in ASTM
D1593, Test method 9.1.3 of the 1981 edition of ASTM and as
published in the 1992 edition as Test Method 10.1.3. The ASTM
notes that the exact method must be used for embossed sheeting.
There is no other known commercial standard and there is no
indication that the standard is widely utilized.
Customs decision 955470, February 17, 1994, classified
garment bags of substantially the same construction as now
submitted within subheading 4202.92, HTSUSA. The articles were
found to satisfy the requirements of ASTM 1593, Table 1, based on
an ASTM thickness of 3 mil.
A recent Court of International Trade (CIT) decision has
limited the use of the ASTM. Central Products CO. v. United
States, Slip Op 96-112, as published in the Customs Bulletin,
Vol. 30, No. 33, August 14, 1996, notes that the definition of a
term as it appears in the tariff be taken according to the common
or commercial definition and if the commercial definition is not
general, definite and uniform, the common definition must
prevail. If the commercial definition is embodied in the ASTM
there must be an indication that it was the intent of Congress to
use that definition or standard. The court ruled that the common
definition must prevail if no other indication is present. The
use of the common definition of the word "rigid" prevailed in
Central as well as it did in a similar decision involving Heading
4202, Amity Leather company and Luggage and Leather Goods
Manufacturers of America, v. United States, colony One Trading
Corp. , Slip Op 96-140. This office knows of no commercial
definition, nor evidence of intent, of the word "Prolonged" as it
appears in the Legal Note.
All common definitions of the term " prolong " is to lengthen
in time, to extend the duration, or to continue. Styles SB 0021,
SY 3, SCP-1 and 04730 are given to the purchasers after the point
of purchase and do become the personal effect in themselves. The
bags are designed for continued use both in the home and when
traveling. As noted the purpose of the imprint is to continue to
keep the name in the public eye. The samples speak for
themselves in that they are clearly designed for continued use
after the point of purchase and will continue to be used to carry
the garments.
The samples presented are of a kind similar to the
containers, cases and bags of Heading 4202, HTSUSA. The
applicable subheading for styles 04730, SCP1, SBP0021 and SY3,
garment bags of a sheeting of plastics, will be 4202.92.4500,
HTSUSA, which provides, in part, for travel, sport and similar,
bags, with outer surface of a sheeting of plastics. The rate of
duty will be 20 percent ad valorem.
This ruling is being issued under the provisions of Part 177
of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above
should be provided with the entry documents filed at the time
this merchandise is imported. If you have any questions
regarding the ruling, contact National Import Specialist
Kevin Gorman at 212-466-5893.
Sincerely,
Paul K Schwartz Chief, Textiles & Plastics Branch
National Commodity
Specialist Division