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HQ 961948




November 5, 1999

CLA-2 RR:CR:TE 961948 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

Port Director
Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, New York 10048-0945

RE: Protest No. 1001-97-104395; Classification of PVC Garment Bags; Travel, Sports and Similar Bags of Plastic; Heading 4202, HTSUSA; Not Plastic Articles for the Conveyance or Packing of Goods; Heading 3923, HTSUSA; Not Other Household Articles of Plastic; Heading 3924, HTSUSA; 4 Mil Standard; ASTM D1593

Dear Sir:

This is in response to the Application for Further Review of Protest Number 1001-97-104395 filed by the importer, E & B Giftware, Inc. (“Protestant”), contesting the classification of garment bags under subheading 4202.92.4500 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which you forwarded to our office for review on June 2, 1998. A sample was not forwarded with the Application for Further Review but was later obtained from the Customs Laboratory.

FACTS:

The articles under protest are garment bags entered into the United States on May 31, 1996. The Protestant classified the garment bags under subheading 4202.99.1000, HTSUSA, which provides for other containers of plastic wholly or mainly covered with paper and a duty rate of 3.4 percent. The invoice description described the goods as “100% PVC Garment Cover.” Based upon a review of the merchandise, Customs determined that the article should have been classified under subheading 4202.92.4500, HTSUSA, which provides for travel bags of plastic and a duty rate of 20 percent. On March 21, 1997, Customs liquidated the entry for increased duties. The Protestant now claims that the garment bags are classifiable under subheading 3923.90.0000, HTSUSA, which provides for other articles of plastic for the conveyance or packing of goods and a duty rate of 3 percent.

The goods covered by the subject entry are garment bags made of Polyvinyl Chloride (PVC) plastic sheeting and are identified by the Protestant as styles RT-42 and RT-52. Style RT-42 is a man’s suit bag and Style RT-52 is a women’s dress/coat bag. Both bags are identical except for the length. The “RT” represents the name of the product, “Royal TravelerÔ”; the “42” and “52” represent the lengths of each bag. Each bag is designed to contain more than one garment and is carried with the person by means of a reinforced top opening through which a clothes hanger is inserted. The bag is closed by means of a nylon coil zipper which extends from the top to the bottom of the front of the bag. All seams are reinforced with nylon stitching and PVC binding. The garment bags are packaged for retail sale and are advertised as travel bags. A printed cardboard insert included in the retail package describes the garment bags as “durable, heavy-duty vinyl protects clothing during travel” and “[i]deal carry-on bag.”

The Protestant submits that the garment bags are constructed of embossed PVC sheeting which is less than 4 mil thick but, other than summarily stating that the embossing artificially increases the thickness of the sheeting, does not provide the basis for its claim. The Customs laboratory found that the material was embossed and determined the thickness to be 4.9 mil based on measurement by micrometer. The thickness of the embossed plastic sheeting was remeasured by the Customs laboratory by using the formula recommended by the American Society for Testing Materials (ASTM) D1593. It was found that the PVC sheeting measured 4.4 mil in thickness.

ISSUE:

Whether the garment bags are classifiable in heading 4202, HTSUSA, as travel bags; in heading 3923, HTSUSA, as articles for the conveyance or packing of goods, of plastics; or heading 3924, HTSUSA, as other household articles of plastic?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The garment bags are potentially classifiable under three different headings: heading 4202, HTSUSA, which provides for, inter alia, suitcases, traveling bags and similar containers; heading 3923, HTSUSA, provides for, inter alia, plastic articles for the conveyance or packing of goods; and heading 3924, HTSUSA, which provides for, inter alia, other household articles of plastic.

The first step in classifying the garment bags at issue is to determine whether the goods are to be placed under chapter 42, the chapter dealing with “luggage”, or in chapter 39, which deals with plastic goods. Classification of goods under the luggage provisions in chapter 42 is limited by Additional U.S. Note 1 to chapter 42 to goods “designed for carrying clothing and other personal effects during travel.” The instant garment bags fall within the scope of Additional U.S. Note 1 to chapter 42 since they are advertised as travel bags and their design indicates they are used to carry clothing and other personal effects.

Furthermore, 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. Customs has consistently classified under heading 4202, HTSUSA, garment bags that are composed of vinyl which measures 4 mil or more in thickness, since such thickness usually denotes a durably constructed article that is designed for prolonged use and travel. See Headquarters Ruling Letter (HQ) 955470, issued February 17, 1994; HQ 085559, issued April 13, 1990; HQ 086218, issued March 26, 1990; HQ 082463, issued September 25, 1989; and HQ 083612, issued May 15, 1989.

For the purposes of determining the proper tariff classification for the embossed vinyl garment bags, Customs remeasured the sample garment bag pursuant to ASTM D 1593 to determine the thickness of the vinyl comprising the bag. The vinyl tested above 4 mil in thickness. In light of the established precedent which classifies garment bags comprised of vinyl measuring more than 4 mil in thickness under chapter 42, HTSUSA, the laboratory report which concluded that the subject garment bags are comprised of vinyl more than 4 mil in thickness and the fact that the bags are packaged for retail sale and advertised as “travel bags,” it is clear that the subject garment bags are properly classifiable under chapter 42, HTSUSA.

Conversely, garment bags that are comprised of vinyl less than 4 mil in thickness are viewed as flimsy bags which are not designed for repetitive or prolonged use. Such garment bags are classified under either heading 3923, HTSUSA, or heading 3924, HTSUSA. See HQ 962225, issued May 21, 1999; HQ 961092, issued March 24, 1998; HQ 960411, issued October 7, 1997; HQ 081971, issued March 26, 1990; HQ 082463, issued September 25, 1989; HQ 082855, issued September 22, 1989; HQ 084764, issued September 14, 1989; HQ 082460, issued July 20, 1989; and HQ 083612, issued May 15, 1989.

The 4 mil standard has been utilized, at least, since the Tariff Schedule of the United States (TSUS). Under the TSUS, garment bags constructed of 4 mil or thicker vinyl were classified as luggage while garment bags constructed of vinyl less than 4 mil were classified as other household articles. See HQ 078780, issued March 5, 1987. In anticipation of the replacement of the TSUS by the Harmonized Commodity Description and Coding System (HS), Customs issued an advisory opinion stating that the provision applicable to garment bags constructed of 4 mil or thicker vinyl would be 4202.92.45.00, HS, the provision for travel bags, and the provision applicable to garment bags constructed of less than 4 mil thick vinyl would be 3924.90.50.00, HS, the provision for other household articles of plastic. See HQ 078780 (cited above). Since that time, Customs has consistently applied the 4 mil standard in classifying vinyl garment bags.

In applying the 4 mil standard, a question was raised as to the appropriate method of measurement. At least by 1989, Customs definitively stated that it uses the formula for determining the thickness of embossed non-rigid vinyl chloride film as recommended by the American Society for Testing & Materials (ASTM) designation D1593. HQ 083612 (cited above). This standard has been consistently used and repeatedly published in Customs rulings. See HQ 960411 (cite above), HQ 955470 (cited above), HQ 085559 (cited above), HQ 086218, HQ 081971 (cited above), HQ 082463 (cited above), HQ 082855 (cited above), HQ 084260 (cited above), and HQ 083612 (cited above). Furthermore, this position was recently reviewed and affirmed by Customs Headquarters. See HQ 962225 (cited above).

HOLDING:

The PVC garment bags identified by styles “RT-42" and “RT-52" are classified in subheading 4202.92.4500, HTSUSA, the provision for travel, sports and similar bags with an outer surface of sheeting of plastic. The general column one duty rate is 20 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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