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HQ 968194




July 27, 2006

CLA-2 RR:CTF:TCM 968194 HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5500

Ms. Sue Shriver
AFI (California)
2381 Rosecrans Avenue, #100
El Segundo, CA 90245

RE: Polyvinyl Chloride bags from China

Dear Ms. Shriver:

This is in response to your letter of March 6, 2006, in which you requested a binding ruling on behalf of your client, Standard Fiber, Inc., regarding the tariff classification of certain polyvinyl chloride (“PVC”) bags manufactured in China. Your letter, with samples appended, was forwarded to this office for a response.

FACTS:

Eight samples were submitted with your request. All of the bags are made of clear PVC sheeting, have nylon coil zipper closures and stitched seams.

You have informed us that the bags are used at the retail level for the conveyance of mattress pads, featherbeds, pillows, pillow covers, sheet sets, and comforters, and are intended to be used by the purchaser for ease in carrying the items at the time of purchase. You have stated that the bags are not intended for reuse.

Bags 1 and 2 measure approximately 22x22x8”, and are sized to hold articles such as featherbeds. Both have sewn seams with PVC piping reinforcement on the seams. Both have a separate white PVC handle sewn onto the top for ease of carrying, and have zipper closures around three sides. Bag 1 is rimmed with wire reinforcement all around the seams, giving it substantial rigidity. The Bureau of Customs and Border Protection (“CBP”) lab has determined that Bag 1 is 5.6 mils thick, and that Bag 2 is 5.7 mils thick.

Bags 3 and 4 measure approximately 20x20x5”, and are sized to hold articles such as comforters. Both have sewn seams with PVC piping reinforcement on the seams. Both have a separate white PVC handle sewn onto the top for ease of carrying, and have zipper closures around three sides. Bag 3 is rimmed with wire reinforcement all around the seams, giving it substantial rigidity. The CBP lab has determined that Bag 3 is 5.7 mils thick, and that Bag 4 is 5.8 mils thick.

Bag 5 measures approximately 15x8x5, and is sized to hold articles such as normal mattress pads. It has sewn seams but does not have the PVC piping reinforcement of the first four styles, nor does it have handles. It has a zipper top closure. The CBP lab has determined that this bag is 5.3 mils thick.

Bag 6 measures approximately 19x24x2, and is sized to hold articles such as pillows. It has sewn seams but does not have the PVC piping reinforcement of the first four styles, nor does it have handles. It has a zipper top closure. The CBP lab has determined that this bag is 4.0 mils thick.

Bags 7 and 8 measure approximately 10x9x6” and 7x11x1” respectively, and are bags of a kind that are sized to hold articles such as small bed linens, clothing, or personal effects. Both bags have sewn seams but do not have the PVC piping reinforcement of the first four styles, nor do they have handles. Both bags have zipper top closures. The CBP lab has determined that Bag 7 is 5.3 mils thick and that Bag 8 is 4.0 mils thick.

ISSUE:

Whether the bags are classified in subheading 3923.29.0000, HTSUS, which provides for: “Articles for the conveyance or packing of goods, of plastics; : Sacks and bags (including cones): Of other plastics”, or, in subheading 3924.90.5500, HTSUS, which provides for: “Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other”.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

3923 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones):
3923.29.0000 Of other plastics ..

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics: 3924.90 Other:
3924.90.5500 Other ..

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not 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.

You suggest that the correct classification of the bags is under heading 3923, HTSUS, which provides for, inter alia, “articles for the conveyance or packing of goods, of plastics.” EN 39.23 explains that heading 3923, HTSUS, covers all articles of plastics commonly used for the packing or conveyance of all kinds of products. These articles include sacks and bags. Accordingly, we find that the subject bags are, prima facie, classifiable in this heading.

We note that heading 3924, HTSUS, which provides for, inter alia, other household articles of plastics, is also, prima facie, an appropriate classification for the subject merchandise. EN 39.24(C) provides that heading 3924, HTSUS, covers “household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipcovers).” The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157. The essential characteristics or purposes of the above listed exemplars are that they are of plastic, are used in the household, and are reusable. The bags at issue are ejusdem generis with the exemplars of EN 39.24(C).

In determining classification under heading 3923 or 3924, HTSUS, we are guided by CBP’s administrative record. CBP has previously considered the issue of the reusability of PVC bags used for packaging blankets and pillows, though in relation to the country of origin marking requirements. In Headquarters Ruling Letter (“HQ”) 734190 (November 18, 1991), bags described as being of clear vinyl, box-like, measuring approximately 18 inches in length, 15 inches in width, and 5 inches in depth, and with edges piped with a sewn on white vinyl strip, were at issue. The U.S. Customs Service (now, CBP) ruled that the bags must be individually marked with the country of origin since they were durable enough to be used again and had a separate identity and use apart from the products that would be sold with them. Our findings were based on: (1) the sturdy construction of the bag - the edges were reinforced with piping to encourage, if not ensure, continued reuse; (2) the zipper feature at one end of the bag which allowed repetitive access to the bag; (3) the durable nature of the plastic employed to make the bags, i.e., it was not flimsy, thin, or of a throw-away variety (a consideration based on ruling C.S.D. 87-1, October 10, 1986); and, (4) the nature of the merchandise packaged in the vinyl bags - durable goods such as pillows and blankets that are often seasonally used and stored in the bags in which they are sold. We consider HQ 734190 to be a useful guide in determining the reusability of the bags at issue.

With regard to the issue of durability, CBP considers PVC bags to be durable if they are composed of clear, unembossed, PVC plastic sheeting measuring 4 mils or more in thickness. We have found this degree of thickness to be generally indicative of a bag or similar container that is designed for prolonged use to carry personal effects (UNLESS the container is not of a kind normally sold at retail on its own merits; and ABSENT single use indicators such as hangers, cutouts, tabs, odd shapes, etc.). However, previous CBP determinations as to whether such PVC bags are designed for prolonged use have been based upon whether or not the bag: (1) is of a kind sold at retail on its own merits; and (2) is of a kind normally sold as packaging with contents. In instances in which merchandise has satisfied both criterion, CBP has consistently considered whether or not the bags can be sold on their own merit to be the determining factor. See, for example, HQ 962363, dated January 19, 2000, which modified New York Ruling Letter (“NY”) D80975 (September 9, 1998) and was therefore subject to notice and comment (published in Customs Bulletin, Vol. 33, No. 46, Dec. 8, 1999). Specifically, HQ 962363 proposed that “determinations as to whether such plastic bags are ‘not designed for prolonged use’ are properly based upon whether or not a bag: 1) is of a kind normally sold at retail on its own merits as a traveling or toiletry bag; and 2) is of a kind normally sold at retail as packaging with contents.” The only comment received endorsed the use of these factors in classifying substantially identical display and presentation bags made of clear, unembossed, PVC retail packaging not designed for prolonged use. See also HQ 963112, dated February 16, 2000, which relied in part on HQ 962363, and HQ 961092, dated March 28, 1998. Though this reasoning has been applied in rulings debating classification between headings 3923 and 4202, HTSUS, we find such reasoning instructive in decisions debating classification between headings 3923 and 3924, HTSUS. We note that heading 4202, HTSUS, which provides for, inter alia, traveling bags, toiletry bags, and similar containers, does not capture the merchandise. For instance, the bags do not have adequate handles for travel purposes.

Using the reasoning employed in HQ 734190 as a guide in the instant case, we find the bags under consideration here to be “reusable”. The bags are of sturdy construction, contain zippers that will withstand many uses, and are made of PVC of a gauge sufficient to resist rips and tears. Moreover, we note that the vinyl packaging industry considers such bags to be reusable. The website www.abondcorp.com promotes its vinyl packaging bags in this way:

If you are looking for promotional ideas, why not have your corporate logo stamped on a vinyl bag? Since our bags are reusable, a custom promotional package will provide advertising for you far beyond the original sale. (Original emphasis.)

Applying the criteria of HQ 962363 to the PVC bags under consideration, we find that, although these bags are of a kind used as ordinary packing for comforters, featherbeds, pillows, bed linens and similar items, they do not constitute the type of bags ordinarily discarded after the contents have been utilized. Rather, they are the type of durable plastic bag that is suitable for repetitive use. We also find that these PVC bags are also of a kind sold at retail on their own merit as household storage bags. We have found websites that market similar bags for sale directly to consumers for storage of linens and other household items. For example, The Container Store (www.containerstore.com) markets a clear vinyl blanket/comforter bag with a nylon zipper. The gauge of the vinyl is unspecified, though it is described as “thick.” Creative Spaces (www.creativespacesusa.com) markets clear vinyl blanket and comforter bags, though again no gauge is shown.

Based on HQ 962363 and the fact that the subject PVC bags are sold on their own merit as household storage bags, we find them to be classified in heading 3924, HTSUS. We note that CBP has consistently found that bags that measure more than 4 mils in thickness belong to the same class or kind of bags used for household storage of linens and other items, and are classified in heading 3924, HTSUS. See NY J85081, dated June 6, 2003, regarding the classification of a vinyl comforter bag measuring 15 mils in thickness, with a wire supporting frame and piping on the sewn seams; NY L89598, dated February 7, 2006, regarding the classification of a PVC bag; and, NY L84286, dated May 12, 2005, regarding the classification of vinyl storage bags with a zipper closure, wire frame, sewn seams and piping wire cover (we note that the thickness was stated to be 12 mm but it is believed the thickness was actually12 mils.).

HOLDING:

The PVC bags at issue are classified in heading 3924, HTSUS, specifically in subheading 3924.90.5500, HTSUS, which provides for: “Tableware, kitchenware, and other household articles and toilet articles, of plastics: Other: Other”.

Sincerely,

Myles B. Harmon, Director

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