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HQ 967040




July 26, 2004

CLA-2 RR:CR:TE 967040 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

Ms. Jennifer Frivalt
Focus Creative Concepts Inc.
374 Bering Avenue
Toronto, Ontario, CANADA
M8Z 3A9

RE: Request for reconsideration of NY K82803, regarding classification of a toiletry kit bag of sheeting of plastic

Dear Ms. Frivalt:

This is in response to your letter, dated March 10, 2004, on behalf of Focus Creative Concepts Inc., requesting reconsideration of Customs and Border Protection (CBP) New York Ruling Letter (NY) K82803, dated February 9, 2004, involving the classification of a toiletry kit bag under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample has been submitted to this office for examination.

FACTS:

The sample is a kit bag intended to contain a personal toiletry product for children. The subject bag is made of plastic sheeting laminated to a woven textile fabric backing. The plastic sheeting makes up the exterior surface of the bag. The bag is constructed in three panels (front, back, and base). The upper portion of this bag is constructed of two panels decreasing in width from top to base. These upper panels are connected by side seams and measure approximately 9.5 inches wide (at the top of the bag); 7 inches wide (at the base) x 4.5 inches high (when unsecured). The article has a nylon zipper closure with a decorative pull-tab of molded plastic. The zipper also features two hard plastic pieces, identified as “plastic closures”, securely attached to either end of the zipper by durable woven tabs. Each of these plastic closures is designed in a dog bone shape having two rounded knobs intended for insertion through elastic loops sewn into either side of the base seam. When fully secured through the elastic loops, these plastic closures have the effect of flattening or compressing the bag to a height of 3 inches even when packed with a full set of the personal toiletry product. The outside base seam secures and reinforces the upper body
of the bag to the rectangular base (4.5 inches x 7 inches) with a piece of flexible plastic piping, which has been sewn into the seam. The interior of the bag has been fitted with a piece of durable fabric tape that overlaps and reinforces the interior seam along the base. The exterior of the bag is printed with trade name logos. Product information and instructions for use of the personal toiletry product are also printed on the sides and base of the bag.

In NY K82803 the subject article was classified as a “toiletry bag” in subheading 4202.92.4500, HTSUSA. You disagree with CBP’s classification and assert that the bag should be classified as an article “ for the conveyance or packing of goods” under subheading 3923.29.0000, HTSUSA.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 4202, HTSUSA, specifically covers various cases and containers, and provides as follows:

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.

The EN to 4202 indicates that the heading covers only the articles specifically named and similar containers. In this case, the subject merchandise is specifically provided for as “toiletry bags” in the second part of the heading. The appropriate subheading for articles, which are eo nomine provided for in the second part of heading 4202, HTSUSA, is determined by the constituent material of the outer surface, i.e., sheeting of plastic. See Additional U.S. Note 2, to Chapter 42, HTSUSA. However, Note 2(A)(a) to Chapter 42 states that the heading does not cover “Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923).”

Upon careful examination of the sample bag, we have determined that it has been designed for prolonged use and would not be excluded from Chapter 42, pursuant to Note 2(A)(a). The subject bags are made with an outer surface of sheeting of plastic that has been reinforced with a laminated woven textile fabric backing. All the seams are securely sewn and the zipper attached with two seams. We note that the children’s personal toiletry article is lightweight. Yet, the base seam of the bag has been made durable with tape and plastic piping that make it possible for the bag to contain heavier toiletry articles. Furthermore, the upper portion of the bag features an increase in the width that strongly suggests it is designed to stow additional personal articles. The packaged personal toiletry article that will be marketed with the bag is designed to fit perfectly at the base of the bag when the plastic closures are fully secured by the elastic loops. However, when the plastic closures are released, the additional width and height at the upper portion of the bag becomes available demonstrating that the bag is intended for the user to stow additional personal cleansing articles, e.g., brush, comb, toothbrush, toothpaste, etc.

You have asserted that the subject bag is properly classified as an article for the conveyance or packing of goods, heading 3923, HTSUSA. However, chapter 39, Note 2(ij), specifically excludes from classification in the chapter, containers of heading 4202. Although EN 39.23 states that the heading covers articles of plastic commonly used for the packing or conveyance of all kinds of products, as we have already noted, the subject bag is clearly designed for more than just the packing or conveyance of the child’s toiletry article. In fact, this durable bag of plastic sheeting has been designed with enhanced space at the top for additional storage of additional toiletry articles. Inasmuch as the subject bag is eo nomine provided for as a toiletry bag of heading 4202, HTSUSA, i.e., designed for prolonged use in the storage, protection, and portability of personal toiletries, it cannot be classified in heading 3923, HTSUSA, as an article for the conveyance or packing of goods. You further assert that the bag’s durability is merely an outcome of having been designed to meet stringent government and
client safety standards for items used by small children. While we recognize the importance of adhering to these safety standards, this does not preclude classification of the article as a toiletry bag of heading 4202, HTSUSA. Nor does it counter the fact that the bag is designed to have expanded space in the upper portion for additional toiletries.

The classification of the subject article as a toiletry bag of heading 4202, HTSUSA, is consistent with prior CBP ruling letters. Directly on point is Headquarters Ruling Letter (HQ) 957076, dated December 28, 1995, wherein CBP classified zipper bags of plastic sheeting as toiletry bags of subheading 4202.92.4500, HTSUSA, after finding that the bags were capable of repetitive use. In HQ 957076, CBP refuted the protestant’s proposed classification of the bag as an article of plastic for the conveyance or packing of goods in subheading 3923.21.0090, HTSUSA. The protestant asserted that the bags were only intended for use as retail packaging to be filled with various nail and manicure accessories for sale to consumers. However, CBP found that a bag constructed of durable plastic sheeting and designed for “prolonged use” is properly classifiable within heading 4202, HTSUSA. See also, HQ 960218, dated October 22, 1997, which classified a rectangular case made of clear plastic sheeting, imported empty but intended to serve as a carrying case for eyewear and printed with a trademark logo on the outside, as a type of eyeglass case which is eo nomine provided for in heading 4202, HTSUSA. HQ 959265, dated April 9, 1999, classified a bag of clear plastic sheeting intended to be filled with cosmetic lotions and cleansers, as a toiletry bag of subheading 4202.92.4500, HTSUSA.

Finally, we have reviewed the binding ruling from Canada Customs dated November 6, 2003, where it was determined that the subject bag is classified in “H.S. 6305.90.00.00”, which provides for “sacks and bags, of a kind used for the packing of goods.” While uniformity in the interpretation of the international Harmonized Tariff System, is a desired outcome, CBP is not bound by classification decisions made by other governments.

In view of the foregoing, we find that NY K82803, correctly classified the merchandise as a “toiletry bag” in subheading 4202.92.4500, HTSUSA.

At this time, we have insufficient information about the personal toiletry article to respond to your request that we issue a “correct clarification of the packaging bag complete with the . . . contents exactly as provided.” A ruling may be requested under Part 177 of the CBP Regulations (19 C.F.R. Part 177), “by any person who, as an importer or exporter of merchandise, or otherwise, has a direct and demonstrable interest in the question or questions presented in the ruling request, or by the authorized agent of such person.” Please be sure to provide specific information relating to the construction of the toiletry article,
which identifies materials used in manufacturing this personal cleansing product. A request for a ruling should be in the form of a letter addressed to:

Director, National Commodity Specialist Division U.S. Customs and Border Protection
Attn: CIE/Ruling Request
One Penn Plaza-10th Floor
New York, NY 10119

In addition, we note that the interior of the bag has a label sewn into the seam indicating “Bag Made in China”. The exterior of the bag at the bottom panel indicates “Made in Poland”, but fails to indicate that it is the origin of the toiletry article. CBP Regulations contained at, Title 19, C.F.R., Section 134.11, require that “. . . every article of foreign origin (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.” At this time, we note that the current marking is not acceptable and suggest that your ruling request seek guidance as to the proper marking for these products.

HOLDING:

NY K82803, dated February 9, 2004, is hereby affirmed.

The subject merchandise, a toiletry bag of plastic sheeting, is correctly classified in subheading 4202.92.4500, HTSUSA, which 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, 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: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other”. The general column one duty rate is 20 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), you should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director

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