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NY A86324



February 14, 1997

CLA-2-95:RR:NC:3:341 A86324

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

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

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