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HQ 964238




May 31, 2002

CLA-2 RR:CR:TE 964238 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

6307.90.9889

Mr. Thomas F. Trost
Phoenix Freight Services, Ltd.
4659 World Parkway Circle
St. Louis, Missouri
63134

RE: Traveling Bags; Garment Bags; Textile, Plastic, and Plastic and Textile Garment Bags; Substantial Construction; Prolonged Use.

Dear Mr. Trost:

The purpose of this correspondence is to respond to your request dated May 1, 2000. The correspondence in issue requested, on the behalf of your client, Whitney Design, Inc., a binding classification ruling on the merchandise described as “Dress or Suit Bag,” “Suit Bag,” “Gown Bag,” and “Dress Bag.”

This ruling is being issued subsequent to the following: (1) A review of your submission dated May 1, 2000; and (2) A review of the eight samples.

FACTS

The articles in issue are identified by Whitney Design, Inc. in the sales literature that accompanies the packaging as the following: “Dress or Suit Bag,” “Suit Bag,” “Gown Bag” and “Dress Bag.”

Textile “Dress or Suit Bag”

The articles identified as “Dress or Suit Bag” and “Dress / Suit Bag” are numbered by Whitney Design as items: 01836 and 01832, respectively. The “Dress or Suit Bag” is “Khaki Canvas” and the “Dress / Suit Bag” is “Natural” in color. The articles are identical in all other material respects.

The articles each measure fifty-four (54) inches in height, fifteen (15) inches in width and twenty (20) inches in depth. They have a metal frame at the top that provides the item with shape. Each has a self-mending nylon zipper that extends the full height of the front. Three hooks at the top are designed to allow the items to hang from a bar in a clothes closet. The “Dress or Suit Bag” and the “Dress / Suit Bag” are both represented in the sales or packaging literature to be made of “Heavy Duty Canvas” and both are designed to hold up to twelve garments. Information provided to Customs indicates that the items are made of a thirty-five percent cotton and sixty-five percent polyester blend fabric.

The articles identified as “Suit Bags” are numbered by Whitney Design as items: 01471 and 01478, respectively. They are identical in all material respects, except color. One is navy blue and the other is a dark brown.

The articles each measure forty-two (42) inches in height, twenty-four (24) inches in width and one and one-half (1 ½) inches in depth. Each has a zipper that extends the full height of the front. The “Suit Bags” do not have any hooks or handles, but have an opening at the top of the bag through which hangers may extend. Customs has been advised that the items are made only of polyester, but an examination of the samples indicates that the polyester also has a backing of plastic sheeting.

Textile “Dress Bag”

The articles identified as “Dress Bags” are numbered by Whitney Design as items: 01461 and 01468, respectively. They are identical to the “Suit Bags” in all material respects, except size. The “Dress Bags” measure fifty-three (53) inches in height, twenty-four (24) inches in width and one and one-half (1 ½) inches in depth. These items are also navy blue and dark brown in color and made of polyester with a backing of plastic sheeting. The “Dress Bags,” similar to the “Suit Bags,” do not have any hooks or handles, but have an opening through which hangers may protrude.

Plastic and Textile “Suit Bag”

The second article identified as a “Suit Bag” is numbered by Whitney Design as item: 01896-2. This “Suit Bag” has an outer surface that is composed of both a textile fabric and plastic.

The article measures forty-two (42) inches in height and twenty-four (24) inches in width. The front is made of clear plastic sheeting and the back is made of a thirty-five percent cotton and sixty-five percent polyester blend textile fabric. The front and back, along all edges, are sewn directly together precluding the article from having a separate depth. The plastic and textile “Suit Bag” does not have any hooks or handles, but has an opening at the top of the bag through which hangers may extend. The item has a zipper that extends the full height of the plastic front. Plastic and Textile “Gown Bag”

The article identified as a “Gown Bag” is numbered by Whitney Design as item: 01892-2. It is identical in all material respects, except size, to the textile and plastic “Suit Bag” identified as item 01896-2. The “Gown Bag” measures sixty-three (63) inches in height and twenty-five (25) inches in width.

The Customs Service is advised that the country of manufacture of each of the items is China.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described textile “Dress or Suit Bag,” textile “Suit Bag,” textile “Dress Bag,” textile and plastic “Suit Bag” and the textile and plastic “Gown Bag” ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F.3d 1098, 1109 (Fed. Cir. 1995).

Textile “Dress or Suit Bag”

Commencing classification of the textile “Dress or Suit Bag,” item number: 01836, and the textile “Dress / Suit Bag,” item number: 01832, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. The heading in which according to its terms and the relative section notes the dress and suit bags are classifiable is heading 6307, HTSUSA. Heading 6307, HTSUSA, provides for the classification of “Other made up articles, including dress patterns:.” “Made up” articles, according to the Section XI notes, particularly note 7, include articles:

Cut otherwise than into squares or rectangles; Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets); Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means; Cut to size and having undergone a process of drawn thread work; Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.

Customs is aware that heading 6307, HTSUSA, is a residual or basket provision. If the textile dress or suit bags were more specifically described by any other heading, Customs would not classify them in heading 6307, HTSUSA. See Explanatory Note 63.07 (providing that heading 6307, HTSUSA, covers “made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.”).

Continuing the classification of the textile dress or suit bag, the merchandise is classified in subheading 6307.90.9889, HTSUSA. Subheading 6307.90.9889, HTSUSA, provides for the classification of :

Other made up articles, including dress patterns:

Other:

Other:
6307.90.98 Other,

Other:
6307.90.9889 Other.

Textile “Suit Bag” and Textile “Dress Bag”

The textile “Suit Bags” and textile “Dress Bags,” respectively identified as item numbers: 01471, 01478, 01461 and 01468, are classified pursuant to GRI 1 in heading 4202, HTSUSA. Heading 4202, HTSUSA, provides for the classification of:

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper. [Emphasis added].

The textile suit bags and dress bags, although not designated eo nomine, that is, by name, in heading 4202, HTSUSA, are similar or ejusdem generis, that is, of the same kind, as the containers, particularly the “traveling bags,” enumerated in the second part of heading 4202, HTSUSA. See generally, Totes v. United States, 69 F. 3d 495, 498 (Fed. Cir. 1995) citing Sports Graphics v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994) (discussing the ejusdem generis rule of statutory construction). The second part of heading 4202, HTSUSA, is that part of the heading which follows the semicolon. The textile suit and dress bags, in accordance with the Totes decision, are ejusdem generis with the “traveling bags” and other items designated eo nomine in the second part of heading 4202, HTSUSA, because they are designed to organize, store, protect and carry items, in this case, clothing. See Totes, Id.

Customs notes that this conclusion was made only after a review of the Chapter Notes and Additional U.S. Notes to Chapter 42 of the HTSUSA. The Chapter Notes, particularly Note 2(A)(a), provide, in part, that “heading 4202 does not cover: (a) Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923).” (Emphasis added). The relevant aspect of Note 2(A)(a) is the statement that articles of sheeting of plastic are properly classified in heading 3923, HTSUSA, if they are not designed for prolonged use. Applying the understanding conveyed by this note to the merchandise in issue, if the textile suit and dress bags are properly classified in heading 4202, HTSUSA, they must be designed for prolonged use. See also Chapter 39, Note 2(ij) (providing, in part, that Chapter 39 does not cover “trunks, suitcasesor other containers of heading 4202.”).

The textile suit and dress bags are designed for prolonged use. They are composed of a durable polyester fabric backed with plastic sheeting. The edges, including the openings for the hanger handles, and the zipper are all reinforced with polyester piping.

The suit and dress bags also comport with the definition of “travel, sports and similar bags” set forth in Additional U.S. Note 1 to Chapter 42, HTSUSA. Additional U.S. Note 1 defines “travel, sports and similar bags” to include bags “of a kind designed for carrying clothing and other personal effects during travel.” The suit and dress bags are bags of a kind designed to carry clothing during travel. Although Additional U.S. Note 1 defines “travel, sports and similar bags” as bags “of a kind designed for carrying clothing and other personal effects during travel.” the Customs Service has consistently interpreted the note to address bags suitable for carrying “clothing” and/or “other personal effects.” (Emphasis added). See generally HQ 962576 (July 10, 2001). It is the conclusion of the Customs Service that this interpretation of the note most accurately achieves the intent of Congress.

The Customs Service, in the preparation of this ruling letter took note of the statement of the importer that the merchandise will be “marketed and sold for use as seasonal storage and protection for wearing apparel and not for protection of garments during travel.” Submission of Importer (May 1, 2000). Although the importer may not market the suit and dress bags for use in transporting clothing, the suit and dress bags are of substantial construction and suitable for prolonged use. The durable construction of the merchandise as well as the previously noted similarities to the containers of the heading, mandate its classification in heading 4202, HTSUSA.

Customs is also aware of Explanatory Note 63.07 (6) which provides that heading 6307, HTSUSA, includes “Garment bags (portable wardrobes) other than those of heading 42.02.” It is the determination of Customs that the suit and dress bags in issue, because they are similar to traveling bags, are of substantial construction and, therefore, are suitable for prolonged use, are properly classified in heading 4202, HTSUSA. Garment bags composed of textile materials which are not of substantial construction and not classifiable in heading 4202 are properly classified in heading 6307, HTSUSA.

Completing the classification of the suit and dress bags in accordance with the GRI’s, the traveling bags with an outer surface of polyester textile material are classified in subheading 4202.92.3031, HTSUSA. Subheading 4202.92.3031, HTSUSA, provides for:

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber, or of paperboard, or wholly of mainly covered with such materials or with paper:

Other:

With outer surface of sheeting of plastic or of textile materials:

Travel, sports and similar bags:

With outer surface of textile materials:

Other,

Other:

Of man-made fibers:

4202.92.3031 Other.

(Emphasis added.).

Plastic and Textile “Suit Bag” and “Gown Bag”

The plastic and textile suit and gown bags are classified at the heading level in heading 4202, HTSUSA. Heading 4202, HTSUSA, provides not only for the classification of “traveling bagsand similar containers” composed “of textile materials,” but also those composed “of sheeting of plastics.” See Heading 4202, HTSUSA. The reasoning and analysis classifying the textile suit and dress bags in heading 4202, HTSUSA, applies equally to the plastic and textile suit and gown bags, except as will be elaborated in the ensuing paragraphs. Reference should initially be made to the above analysis for the classification of this merchandise at the heading level.

The Customs Service, because the plastic and textile suit and gown bags are composed of both a plastic material and a textile material, must address the impact of the plastic material on the classification of this merchandise at the heading level. Customs, in an earlier aspect of this ruling letter, addressed the durability of the textile material of which the textile suit and dress bags are composed. Although the textile suit bags and the textile dress bags are composed of a polyester textile fabric, the analysis and conclusions are the same for the cotton and polyester blend fabric aspect of the plastic and textile suit and gown bags.

Customs, before concluding that the plastic and textile suit and gown bags are properly provided for in heading 4202, HTSUSA, must confirm that the plastic material is of such substantial construction to be considered as having been designed for prolonged use. Customs has previously determined that clothing or garment bags composed of plastic sheeting are considered designed for prolonged use if the plastic was of a thickness of at least four (4) mils. See generally HQ 086218 (Mar. 26, 1990), HQ 962363 (Jan. 19, 2000). A thickness of four mils is considered by Customs to be indicative of an article that is designed for prolonged use.

Customs laboratory was consulted to establish the thickness of the plastic material comprising portions of the plastic and textile suit and gown bags. Customs laboratory confirmed that the plastic is greater than four mils thick. Since the plastic of the plastic and textile suit and gown bags is greater than four mils thick, the plastic aspect of the article is deemed to be of substantial construction. The plastic and textile suit and gown bags are properly classified in heading 4202, HTSUSA, since both the plastic and textile aspects are, for Customs purposes, of substantial construction and designed for prolonged use.

Continuing the classification of the plastic and textile suit and gown bags at the six-digit level, the merchandise is classified in subheading 4202.92, HTSUSA. Subheading 4202.92, HTSUSA, provides, in part, for: “Other: With outer surface of sheeting of plastic or of textile material.”

The next level of indentation in the tariff schedule is more problematic. Customs is faced with two possible options for classifying the plastic and textile suit and gown bags at this level. The possible descriptions include: “Travel, sports and similar bags: With outer surface textile materials:” and “Travel, sports and similar bags: Other.” Customs is confronted with these choices because the merchandise is composed of both textile material and plastic. The front of the suit and gown bags is made of plastic sheeting and the back is made of a thirty-five percent cotton and sixty-five percent polyester blend of textile fabric.

Customs, to resolve the classification issue at this level of indentation, must employ GRI 6. General Rule of Interpretation 6 provides that the preceding General Rules of Interpretation, GRI’s 1 through 5, may be utilized at the subheading level, with the understanding that “only subheadings at the same level are comparable.” See General Rule of Interpretation 6.

Since there are two subheadings that must be considered, neither GRI 1 nor GRI 2 employed at the subheading level, resolve the question. Customs must resort to GRI 3 because, at this subheading level the “goods are, prima facie, classifiable under two or more [sub]headings.” General Rule of Interpretation 3.

The plastic and textile suit and gown bags are, pursuant to GRI 3(b), composite goods consisting of different materials. Since the plastic and textile suit and gown bags cannot be classified pursuant to GRI 3(a), GRI 3 (b) dictates that they “be classified as if they consisted of the material which gives them their essential character.” General Rule of Interpretation 3 (b). The material that affords the plastic and textile suit and gown bags their essential character is the textile material. The textile material is that aspect of the bags that provides the greatest value. The textile material additionally provides the merchandise with its greatest durability, particularly at the edges, zipper and hanger openings where textile piping is used to reinforce the seams. See NY C85092 (Mar. 31, 1998). The plastic and textile suit and gown bags, at this level of indentation in the tariff schedule are classified as: “Travel, sports and similar bags: With outer surface of textile materials:.”

Concluding the classification of the plastic and textile suit and gown bags, the merchandise is classified in subheading 4202.92.3031, HTSUSA. Subheading 4202.92.3031, HTSUSA, at the seventh-digit through the tenth-digit level, provides for the classification of “Other, Other: Of man-made fibers: Other.” The plastic and textile suit and gown bags are classified in the same ten-digit subheading as the textile suit and dress bags addressed above. Subheading 4202.92.3031, HTSUSA, is set forth above in its entirety.

HOLDING

The textile dress and suit bags, items: 01836 and 01832, are classified in subheading 6307.90.9889, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is seven (7) percent ad valorem.

The textile suit bags, items: 01471 and 01478, textile dress bags, items: 01461 and 01468, the plastic and textile suit bag, item: 01896-2, and the plastic and textile gown bag, item: 01892-2, are classified in subheading 4202.92.3031, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is eighteen and one-tenth (18.1) percent ad valorem.

The textile quota category for merchandise classified in subheading 4202.92.3031, HTSUSA, is 670. Customs advises that there are no applicable quota or visa requirements for products of World Trade Organization (WTO) member-countries. The textile quota category above applies to merchandise produced in a country that is not a member of the WTO.

It is recommended that Whitney Design, Inc. contact its local Customs Service office prior to the importation of this merchandise from a non-WTO member-country to determine the current status of any restraints or requirements due to the changeable nature of the statistical annotation, the ninth and tenth digits of the HTSUSA, and the restraint (quota/visa) categories applicable to this textile merchandise.

The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the merchandise may be affected. Since part categories are the result of international bilateral agreements and subject to frequent renegotiations and changes, to obtain the most current information available resort may be had, close to the time of shipment, to the Status Report on Current Import Quotas (Restraint Levels). The Status Report is an internal issuance of the U.S. Customs Service that is updated weekly. It is available for inspection at local Customs Service offices and on the Customs Electronic Bulletin Board (CEBB) at: www.customs.gov.

Sincerely,

John Durant, Director
Commercial Rulings Division

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