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HQ 081971


March 26, 1990

CLA-2 CO:R:C:G 081971 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 3923.90.0000; 3923.21.0050

Miss Irene Gross
S. Walter Packaging Corp.
11620 Caroline Road
Philadelphia, Pa. 19154-2187

RE: Vinyl garment bags and polyethylene bags

Dear Ms. Gross:

This ruling is in response to your letter dated December 17, 1987, requesting the classification of garment bags and polyethylene bags under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were provided for our examination.

FACTS:

The garment bags in question are vinyl and are closed by means of a nylon coil zipper. The garment bags measure 3 mil thick by micrometer and are 40 inches wide and 54 inches long.

The polyethylene bags include double handle shopping bags and sacks without handles. The sizes and shapes of the bags vary. In addition, some of the bags have the name of retailers imprinted on them.

ISSUES:

1. What is the classification of the vinyl garment bags under the HTSUS?

2. What is the classification of the polyethylene bags under the HTSUS?

LAW AND ANALYSIS:

Issue 1- Classification of the Vinyl Garment Bags

Classification of goods under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such heading or notes do not otherwise require, according to the remaining GRI's taken in order.

The first step in classifying the garment bags at issue is to determine whether they are to be classified in Chapter 42, the chapter dealing with luggage, or in Chapter 39, which deals with plastic goods. The garment bags could be classified in two possible subheadings within the two above chapters:

(a) Subheading 4202.92.4500, HTSUS, which provides for trunks, suitcases,... other: travel, sports and similar bags, with outer surface of plastic sheeting: other;
or

(b) Subheading 3923.90.0000, HTSUS, which provides for articles for the conveyance or packing of goods, of plastic, other;

Additional U.S. Note 1 to Chapter 42, HTSUS, provides in pertinent part that "for the purposes of heading 4202, the expression 'travel, sports, and similar bags' means goods... of a kind designed for carrying clothing and other personal effects during travel...." It has consistently been Customs position to view the substantiality of construction as essential to a finding that an article is designed for travel, and thus could be designated as luggage within Chapter 42.

Garment bags that are constructed of 4 mil or thicker vinyl are substantially constructed so as to warrant classification as luggage within Heading 4202, HTSUS. In determining the thickness of the garment bags, the Customs Service uses the formula for determining the gauge of embossed non-rigid vinyl chloride film as recommended by the American Society for Testing and Materials (ASTM designation D1593-81).

The instant garment bags have an ASTM thickness of less than 4 mil. Consequently, they are classifiable in subheading 3923.90.0000, and are not classifiable as travel, sports or similar bags in subheading 4202.92.4500.

Issue 2- Classification of Polyethylene Bags

The polyethylene shopping bags would, prima facie, be classifiable in Heading 4202, HTSUS, which does provide for "shopping bags" in its legal text. However, pursuant to legal note 2(a) to Chapter 42, Heading 4202, HTSUS, does not cover:

Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use.

Shopping bags manufactured of polyethylene plastic sheeting are not designed for prolonged use. Moreover, in the Explanatory Notes for Heading 4202, HTSUS, which are the official interpretation of the tariff at the international level, it states:
The heading [4202] does not cover:
(a) Shopping bags as described in Note 2(a) to this Chapter (heading 39.23).

This demonstrates that legal note 2(a) to chapter 42 is intended to limit what is considered to be a "shopping bag" classifiable within Heading 4202, HTSUS, and that the instant shopping bags are not covered by Heading 4202.

The shopping bags could be classified in either Heading 3923, HTSUS, which provides for articles for the conveyance or packing of goods, of plastic, or Heading 3926, HTSUS, which provides for other articles of plastic. The Explanatory Notes to Heading 3923, HTSUS, state:

This heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products.

In addition, legal note 2(a) to Chapter 42, covering Heading 4202, HTSUS, directs the reader to Heading 3923, HTSUS, when the article in question is a bag made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use.

The instant bags are made of plastic sheeting and are not designed for prolonged use. They will be used to pack all types of products and to convey these products from the store to the consumer's home. Therefore, the bags at issue here, represented by samples, would be classifiable in Heading 3923.

HOLDING:

The vinyl garment bags are classifiable under subheading 3923.90.0000, HTSUS, which provides for articles for the conveyance and packing of goods of plastic, other, dutiable at the rate of 3 percent ad valorem.

The polyethylene bags are classifiable under subheading 3923.21.0050, HTSUS, which provides for articles for the conveyance and packing of goods, sacks and bags, of polymers of ethylene and are dutiable at 3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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