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HQ 957076

December 28, 1995
CLA-2 RR:TC:TE 957076 SK


TARIFF NO.: 4202.92.4500

Port Director
U.S. Customs Service
Airport International Plaza
Newark International Airport
Newark, New Jersey 07114

RE: Decision on Application for Further Review of Protest No. 1001-4-102487; classification of plastic bags with tongue and groove slider closure; 4202.92 v. 3923.21; toiletry/cosmetic bags; bags reuseable and of durable construction; travel pouch; HRL 951534 (8/4/92); 954715 (2/17/95); HRL 956666 (5/30/95); HRL 954965 (9/20/93).

Dear Sir:

This is a decision on application for further review of a protest timely filed by D. Hauser, Inc., on behalf of Dae Do International Ltd., on April 5, 1994, against your decision regarding the classification of zipper bags made of plastic sheeting. At issue is a single entry made at the port of Newark on April 15, 1993, and liquidated on January 14, 1994.


This protest involves the classification of toiletry/cosmetic bags of clear 7.5 mil thick polyvinyl chloride (PVC) plastic sheeting. Each bag features a tongue and groove slider closure. The smaller bag measures approximately 3-1/2 by 4-1/2 by 3/4 inches and the larger bag measures approximately 6-1/2 by 4-1/2 by 1 inches. Two representative samples were submitted to this office for examination.

The subject merchandise was entered under subheading 3923.21.0090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for, in part, plastic sacks and bags for the conveyance or packing of goods. The protestant states that the subject articles are only used as retail packaging; the plastic bags are imported empty and are then filled with various nail and manicure accessories for sale to consumers. The protestant argues that the bags will most likely be discarded after the contents are used.

The merchandise was liquidated under subheading 4202.92.4500, HTSUSA, which provides for, in part, travel, sports or similar bags with outer surface of sheeting of plastic. Your contention, as indicated in the Customs Form 6445, is that these bags are "for prolonged use" and therefore properly classifiable as cosmetic/toiletry bags of heading 4202, HTSUSA.


What is the proper classification of the subject merchandise?


Classification under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relevant section or chapter notes.

The two competing headings in the instant case are heading 3923, HTSUSA, which provides for plastic articles for the conveyance or packing of goods, and heading 4202, HTSUSA, which provides for, in pertinent part, various types of travel cases. In past rulings, this office has consistently determined that variously styled cosmetic/toiletry bags, of varying sizes, are classifiable under subheading 4202.92, HTSUSA, as travel, sports and similar bags. See Headquarters Ruling Letter (HRL) 951534, dated August 4, 1992; HRL 954965, dated September 20, 1993, and; HRL 956666, dated May 30, 1995. Therefore, the determinative issue is whether the subject bags are cosmetic/toiletry bags, or whether they are merely plastic packaging articles.

In an analogous case, Customs examined the issue of whether similarly designed plastic bags were classifiable as containers of heading 4202, HTSUSA, or as articles of "retail packaging" in heading 3923, HTSUSA. In HRL 954715, dated

February 17, 1994, Customs classified two bags made of 5.5 mil thick clear plastic sheeting which featured tongue and groove slider closures under heading 4202, HTSUSA. Although the bags are bigger than those currently at issue, and used to carry office, school and related materials, they are substantially similar to the instant bags in all other material respects. In HRL 954715, this office noted that "Chapter 42, Note 2(a), HTSUSA, states that Heading 4202 does not cover bags made of sheeting of plastics ... not designed for prolonged use (heading 3923)'" [emphasis added]. This office then examined whether bags made of 5.5 mil plastic sheeting with slider closures were "designed for prolonged use." We stated:

"the bags have been designed for repetitive use. We note that these containers possess tongue and groove closures with metal and plastic slides that will withstand many uses. The plastic material is of a gauge sufficient to resist rips and tears ..... The bags are similar to pencil cases or pouches of plastic which we have classified in heading 4202 when designed for travel. See
HRL 087026, dated July 24, 1990."

We concur with the classification analysis set forth in HRL 954715. As the bags at issue are made from an even thicker plastic sheeting (7.5 mil) than those classified in HRL 954715, we believe the subject bags are similarly well-suited for "prolonged use" and are therefore classifiable as travel bags within heading 4202, HTSUSA.


The subject merchandise is classifiable under subheading 4202.92.4500, HTSUSA, which provides for toiletry bags, purses and similar containers: travel, sports and similar bags: with outer surface of sheeting of plastic or of textile materials: other. The applicable rate of duty was 20 percent ad valorem on the date of liquidation of the subject entry.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was liquidated, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest. In accordance with Section

3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision.

Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Tariff Classification Appeals

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