HQ W968181

October 3, 2006

**CLA-2 RR:CTF:TCM** W968181 HkP

**CATEGORY:** Classification

**TARIFF NO.:** 3923.29.0000; 3924.90.5500

> 4202.92.4500; 6307.90.9889

Port Director

Port of Los Angeles/Long Beach

U.S. Customs and Border Protection

310 E. Ocean Blvd.

Suite 1400

Long Beach, CA 90802

**RE:** Protest No. 2704-06-100029 and Application for Further Review;

Polyvinyl Chloride bags

Dear Port Director:

This is our decision regarding the Application for Further Review
("AFR") of Protest Number 2704-06-100029, timely filed by counsel on
behalf of Imex Discovery Resources, Inc., d/b/a Imex Vinyl Packaging
("Imex"), concerning the classification of various bags made of
polyvinyl chloride ("PVC"), polypropylene non-woven textile material
("PPNW"), or a combination of the two, under the Harmonized Tariff
Schedule of the United States ("HTSUS").

**FACTS:**

As an initial matter, we note that U.S. Customs and Border Protection
("CBP") has not been provided with any descriptive literature, samples
or pictures of the merchandise at issue. This decision is based on the
description of the merchandise as provided by counsel and information
from the Imex website.

The subject entries consist of various models of bags constructed of PVC
sheeting, PPNW, or a combination of the two. Counsel informs us that
Imex imports bags and packaging for a variety of products, including
bedding, home furnishings, apparel, bath articles, and other items. We
are also told that some of the bags are customized bags while others are
stock bags. The compositions, dimensions, thicknesses, and closures of
the bags vary.

For ease of reference, counsel categorizes the bags into four groups,
denoted as Sections A through D.

Section A identifies bags that are less than 4 mils thick and
constructed solely of PVC. Some have zipper closures, while others have
flap closures or no closures at all. Some of the bags also have handles
or pockets. A few styles of these bags are garment bags, and the
remaining bags are cylindrically shaped or have rectangular sides in
varying dimensions. Counsel states that these bags are properly
classified in subheading 3923.29.0000, HTSUS.

Section B identifies bags that are made of PVC with thicknesses ranging
from approximately 6 to 10 mils. The bags are either cylindrical in
shape or have rectangular sides, and may have a snap closure, a zipper
or drawstring. We are told that these bags are packaging for bath
articles but are not designed for use subsequent to their use as retail
packaging material. Counsel asserts that these bags are properly
classified in subheading 3923.29.0000, or, in the alternative, in
subheading 3924.90.5500, HTSUS.

Section C identifies bags that are made of PVC and have a thickness of
approximately 4 mils or greater. Counsel distinguishes the bags of
section B and C by noting that none of the bags in Section C are used
for the packaging or sale of bath articles. Counsel states that Section
C bags are used for retail packaging of items such are pillows, sheets,
mattress pads, comforters, first aid articles, and pet treats. They are
primarily bags with rectangular sides, and have zippers, snap closures,
or flap closures without snaps. Some of the bags also have handles or
hangers. Counsel asserts that these bags are properly classified in
subheading 3923.29.0000, or, in the alternative, in subheading
3924.90.5500, HTSUS.

Section D identifies bags that are constructed either solely of PPNW or
PVC, or of various combinations of PPNW and PVC. We are told that many
of the bags have front and back panels constructed of PVC and top,
bottom, and side panels constructed of PPNW. Other bags have exterior
panels constructed of PVC and one or more inner dividers constructed of
PPNW. Other styles have side and back panels constructed of PPNW, while
the remainder of the bag is constructed of PVC. The bags come in a
variety of sizes and with a variety of closure types. Counsel states
that these bags are properly classified in subheading 6307.90.9889,
HTSUS, or, in the alternative, in subheading 3923.29.0000 or
3924.90.5500, HTSUS.

The subject merchandise was entered on various dates in 2005 under
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". These entries were later rate
advanced by CBP and liquidated under subheading 4202.92.4500, HTSUS,
which provides for, *inter alia*: "traveling bags, ... toiletry bags,
... shopping bags ... and similar containers, ... of sheeting of
plastics, of textile materials ... : Other: With outer surface of
sheeting of plastic or of textile materials: Travel, sports and similar
bags: Other." The entries were liquidated between September 30, and
December 14, 2005. A protest was timely filed on December 28, 2005, in
which counsel for Imex asserted that, based on Note 2(ij) to Chapter 39
and Note 2(A)(a) to Chapter 42, HTSUS, Chapter 42 is not the proper
classification for the subject entries.

**ISSUE:**

Whether the bags are properly classified in heading 4202, HTSUS, which
provides for toiletry bags and similar containers.

**LAW AND ANALYSIS:**

Initially, we note that the matter protested is protestable under 19
U.S.C. § 1514(a)(2) as a decision on classification. The protest was
timely filed, within 90 days of liquidation of the first entry for
entries made before December 18, 2004, and within 180 days of
liquidation of the first entry for entries made on or after December 18,
2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.
108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §
1514(c)(3) (2006)).

Further Review of Protest No. 2704-06-100029 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24 because the decision against
which the protest was filed involves matters previously ruled upon by
the Commissioner of Customs or his designee or by the Customs courts but
facts are alleged or legal arguments presented which were not considered
at the time of the original ruling.

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 .....

4202 Trunks, suitcases, vanity cases, ... ; traveling bags, insulated
food or beverage bags, toiletry bags, knapsacks and backpacks, handbags,
shopping bags, ... 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:

4202.92 With outer surface of sheeting of plastic or of textile
materials:

> Travel, sports and similar bags:

\* \* \*

4202.92.4500 Other .....

6307 Other made up articles, including dress patterns:

6307.90 Other:

> Other:

\* \* \*

6307.90.98 Other .....

> \* \* \*
>
> Other:

\* \* \*

6307.90.9889 Other ....

Note 2(ij) to Chapter 39, HTSUS, provides, in part, that chapter 39
"does not cover trunks, suitcases, handbags or other containers of
heading 4202."

Note 2(A)(a) to chapter 42, HTSUS, provides, "heading 4202 does not
cover: bags made of sheeting of plastics, whether or not printed, with
handles, not designed for prolonged use (heading 3923)."

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.

We first consider the bags of Sections A, B, and C, which CBP liquidated
under heading 4202, HTSUS, but which counsel claims are classifiable in
heading 3923, or, in the alternative, in heading 3924, HTSUS.

Heading 3923, HTSUS, 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.

Heading 3924, HTSUS, provides for, *inter alia*, other household
articles of plastics. 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]{.underline}
(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.]{.underline} 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.

Heading 4202, HTSUS, provides for, *inter alia*, traveling bags,
toiletry bags, and similar containers.

CBP's administrative record shows, with regard to the merchandise of
headings 3923, 3924, and 4202, HTSUS, that physical characteristics
indicating reusability and durability prove useful tools in
differentiating between the goods of these headings.

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]{.underline} 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, Headquarters
Ruling Letter ("HQ") 962363, dated January 19, 2000, which sought to
modify New York Ruling ("NY") D80975 (September 9, 1998) and was
therefore subject to notice and comment (published in [Customs
Bulletin]{.underline}, 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 in heading 3923 or 4202, HTSUS, we
find such reasoning instructive in classification decisions concerning
heading 3924, HTSUS.

# Section A

CBP previously classified these bags in heading 4202, HTSUS, which
provides for, *inter alia*, traveling bags, toiletry bags, and similar
containers. However, Note 2(A)(a) to Chapter 42, HTSUS, excludes bags
made of plastic sheeting not designed for prolonged use from Chapter 42.
In the instant case, the PVC bags are sold with items packed inside, and
are not of a kind sold at retail on their own merit. Although the bags
contain zippers that will withstand many uses, the bags are not durable
as they are made of PVC of a gauge that is insufficient to resist rips
and tears, *i.e.*, less than 4 mils. Because the bags are not designed
for prolonged use they are excluded from Chapter 42 by operation of Note
2(A)(a). Applying the reasoning employed in HQ 962363 to these facts, we
now hold that Section A bags are properly classified in heading 3923,
HTSUS, because they are the kind of plastic bag used as packaging and
are not sold at retail on their own merit.

## Section B

Counsel identifies these bags as PVC packaging for bath articles. The
Imex website further describes these bags as being "high gloss" and made
of "Double-Polished Clear ("DPC") vinyl, the clearest vinyl available".
Counsel states that these bags are not designed for use subsequent to
their use as retail packaging material or for use for extended periods
of time. Counsel further states that the bags of Section B are not the
type of bags consumers could purchase for use as vanity cases or
toiletry bags, and are therefore not classifiable in heading 4202,
HTSUS. Counsel cites **HQ 960218**, dated October 22, 1997, in support
of this position. However, we note that the bag in that ruling was
classified in heading 4202, and accordingly, we do not consider this
ruling to bolster the importer's position.

We note that all of the bags of Section B are of a thickness that is
suitable for repetitive use and all have closures that allow for
repeated opening and closing. Counsel argues, "the fact that these bags
are constructed of PVC with a thickness of greater than 4 mil does not
preclude their classification at 3923.29.0000, HTSUS." We agree. As we
have previously stated, 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. We have found several websites selling bags
similar to the description provided by counsel of Section B bags as
toiletry/cosmetic bags. *See* www.treetopapparel.com,
www.dollardays.com, www.sks-bottle.com, www.lbuinc.com, and
www.goinginstyle.com. In addition, the Imex website informs us that the
high gloss stock bags have reinforcing features such as heat-sealed
seams, sewn-seams, and grommets. The "Product Information" section of
the website highlights general features of Imex bags, such as, "Smooth
operating buckles," "5-6 stitches per inch -- the strongest in the
industry," and "a variety of durable carry straps." These marketing
claims as well as the reinforcing features of the bags indicate that the
subject bags are designed for prolonged use. Based on the foregoing
information and HQ 962363, we find that the bags are of a kind sold at
retail on their own merits as toiletry bags, and are therefore
classified in heading 4202, HTSUS. In response to counsel's proposed
alternative classification in subheading 3924.90.5500, HTSUS, Note 2(ij)
to Chapter 39, HTSUS, excludes bags that meet the definition of heading
4202 from classification in chapter 39. Consequently, they cannot be
classified in Chapter 39, HTSUS.

## 

## Section C

CBP previously classified these bags in heading 4202, HTSUS. For the
reasons stated in Section A above, we find that this classification is
incorrect.

Some of these bags are described as being similar to the bags of Section
A but thicker - measuring over 4 mils (type 1), while others are
described as having features such as plastic tabs with holes or hangers
that allow the package to be displayed in the store on a rack (type 2).
Counsel has suggested that both types of bags are properly classified in
heading 3923, HTSUS, or, in the alternative, in heading 3924, HTSUS.

With regard to type 1 bags, 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 reuse. 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 previous Headquarters rulings and the fact that the subject PVC
bags are of a kind sold on their own merit as household storage bags, we
find the type 1 bags 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* **HQ 968194**, dated July 27, 2006, regarding the
classification of PVC storage bags with zipper closures and sewn seams;
**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 actually 12 mils.).

We note that these bags are not classifiable in heading 4202, HTSUS, an
*eo nomin*e provision, because they are not provided for by name nor are
they similar to the named contents. The Court of International Trade has
clarified that articles designated *eo nomine* in heading 4202, HTSUSA,
are designed to organize, store, protect and carry. [Totes, Inc. v.
United States]{.underline} (["Totes"]{.underline}), 865 F. Supp. 867
(Ct. Int'l Trade 1994). In [Totes]{.underline} the CIT considered, among
other things, the broad reach of the residual provision for "similar
containers" in heading 4202 and noted that the individual exemplars of
the heading are "disparate in their physical characteristics, purposes
and uses". At 872. The Court stated: "As is evident from the obvious
physical and use disparities ... the rule of ejusdem generis requires
only that the merchandise to be classified possess the essential
character or purpose running through all of the enumerated examples."
[Id.]{.underline} This statement was based on the reasoning of the court
in [Izod Outerwear v. United States]{.underline}, 9 C.I.T. 309 (1985), a
case in which the court had to determine the shared characteristics of
garments designed for "rainwear," "hunting," and "fishing". The court in
[Izod]{.underline} found that for an article to be classifiable under
the particular tariff item for garments designed for "similar uses" to
rainwear, hunting, and fishing garments, the garment need not be, for
example, actual rainwear. As restated in [Totes]{.underline},
"\[p\]recise functional equivalence to, or commercial interchangeability
with, any one particular exemplar enumerated in the heading plainly is
not required by the rule of ejusdem generis." At 874. Based on this
reasoning the court in [Totes]{.underline} found that "\[i\]nsofar as
the trunk organizers serve the purposes of organization, holding,
storage and protection of articles, they fall within the class of
articles listed as exemplars in Heading 4202, especially jewelry boxes
and cutlery cases that serve mainly to facilitate an organized
separation, protection, storage or holding of jewelry or cutlery items".
In addition, the court expressly rejected the notion that a principal
design feature of the organizer had to be portability or
transportability in order to be classified as a "similar container"
under heading 4202. It was sufficient that it had characteristics in
common with some of the varied exemplars. Applying the rule of ejusdem
generis as explained in [Totes]{.underline} to the bags at issue, we
find that they are not designed for uses similar to any of the uses of
the exemplars in heading 4202, HTSUS. Consequently, because they are
neither named articles of heading 4202, HTSUS, nor similar to any of the
named articles, we find that they are not provided for in this heading.

With regard to the type 2 bags of Section C, we note that any bag with a
special design feature that limits the use of the product to retail
packaging, and puts it in a class that is not sold on its own at retail,
is not classifiable in heading 3924 or 4202, HTSUS. CBP has consistently
held that such features indicate packaging of heading 3923, HTSUS. In
**HQ 962363**, CBP found that one of the bags under consideration was
properly classified as packaging in heading 3923, even though it
measured over 4 mils in thickness, because it was not of a kind normally
sold at retail on its own merits. It had a top center cutout through
which a flimsy plastic hanger protruded. In **HQ 963112**, CBP
classified a packaging article that measured 11 mils in thickness in
heading 3923 because it was of a kind used for packing specific contents
and was not of a kind normally sold at retail on its own merits. The bag
featured a top center cutout through which a flimsy plastic hanger
protruded, and a cutout on the rear exterior of the bag through which a
prospective purchaser could feel and manipulate the contents. Applying
administrative precedent to the instant facts, we find that the type 2
bags are classified in heading 3923, HTSUS, as plastic bags for the
packing of goods (packaging).

[Section D]{.underline}

The bags are described as being constructed either solely of PPNW or of
various combinations of PPNW and PVC, and "like the bags in Section C,
... come in a variety of sizes and with a variety of types of closures".
However, the spreadsheet attached to the AFR indicates that some of the
bags appear to be comprised solely of PVC (e.g., Part no. B5081-PAJ
23x16x6, 4G zip bag; part no. 818-27-00-00, 11x9.5x5 4G PVC bootie bag,
zip bag). We note that some of the descriptions are incomplete or
unclear, as they do not state the number of sides or panels of the bags
made of PVC or PPNW material (e.g., Part no. 70707831, 20x16x8 6G DPC
zip w/75GM wht PPNW panels; part no. 5RBX072 23x23x4 4G PVC and PPNW).
We assume in instances in which panels or sides are specified as being
made of either PVC or PPNW material, that the remainder of the bag is
made of PPNW material or PVC, respectively. *See, for example*, part no.
820-04-00-00 30x14x6, zip bags, FRT and BK panels in 4G PVC. In
addition, the spreadsheet indicates that the majority of the bags of
Section D are 4 mils and above in thickness and are used for a variety
of bedding items, such as comforters, blankets, mattress pads, and
pillows.

Counsel argues that the bags are properly classified in subheading
6307.90.9880, HSTSUS, as other articles of textile fabric, and not in
heading 4202, HTSUS. In the alternative, we are asked to classify the
bags in either heading 3923 or 3924, HTSUS, as if they were constructed
solely of PVC.

CBP previously classified the bags of Section D in heading 4202, HTSUS,
which provides for a variety of named articles and "similar containers"
made of, among other things, plastics and textiles. However, the bags of
Section D, *i.e.*, bags for the packaging or storage of household
bedding items, are not named in this heading. Further, when we apply the
rule of *ejusdem generis* as explained in [Totes]{.underline} to the
bags at issue, we find that they are not designed for uses similar to
any of the uses of the exemplars in heading 4202, HTSUS. Because the
bags of Section D are neither named in heading 4202, HTSUS, nor similar
to any of the named articles, we find that they are not provided for in
this heading.

In support of classification in heading 6307, HTSUS, counsel cites
previous CBP rulings. In **NY H82939** (July 25, 2001), CBP classified a
storage bag constructed of nonwoven fabric panels and plastic sheeting
material in 6307.90.9989 (now, 6307.90.9889), HTSUS. The sides were made
of nonwoven fabric panels and the top and bottom of plastic sheeting. In
**NY G86432** (January 25, 2001), CBP classified a comforter bag with a
zipper closure in subheading 6307.90.9889, HTSUS. The bag was made of a
clear plastic material that formed the back, bottom and one side of the
bag and a nonwoven textile fabric that formed two sides. The top
consisted of a clear plastic material panel and nonwoven textile fabric
exterior. Counsel holds that these rulings "demonstrate CBP's position
that the PPNW in these bags gives them their essential character." We
note that in both cases the PPNW material made up at least two sides of
the products at issue and that these rulings were based on a GRI 3(b)
analysis. GRI 3 provides, in pertinent part:

> When by application of rule 2(b) or for any other reason, goods are,
> *prima facie*, classifiable under two or more headings, classification
> shall be effected as follows:
>
> \* \* \*
>
> \(b\) Mixtures, composite goods consisting of different materials or
> made up of different components, and goods put up in sets for retail
> sale, which cannot be classified by reference to GRI 3(a), shall be
> classified as if they consisted of the material or component which
> gives them their essential character, insofar as this criterion is
> applicable.

(c) When goods cannot be classified by reference to GRI 3(a) or 3(b),
    they shall be classified under the heading which occurs last in
    numerical order among those which equally merit consideration.

Counsel also cites **HQ 962663** (April 1, 2002), in which CBP
classified a comforter bag made of PPNW in subheading 6307.90.9889,
HTSUS. We find this ruling relevant only to the classification of bags
made entirely of PPNW material.

Applying administrative precedent to the bags at issue, we find that the
bags that are made up of more than 50% PPNW material, or are comprised
wholly of PPNW material, are classified in heading 6307, HTSUS. In cases
in which bags are made up of less than 50% PPNW material, we find that
essential character is imparted by the PVC and not the PPNW material,
and the bags are classified in Chapter 39, HTSUS. As earlier discussed,
bags made entirely of PVC are also classified in Chapter 39, once they
are not bags of chapter 42, HTSUS. To the extent that bags comply with
the requirements of either heading 3923 or 3924, they are classified in
those headings. We also find that bags described as "flat bags", which
we believe means that they are only comprised of two panels and no
sides, one panel being PVC and the other of PPNW, have no essential
character. They are equally classifiable in chapter 39 and 63, HTSUS.
Applying GRI 3(c) to such cases, we classify those bags in heading 6307,
HTSUS. To the extent that any of the bags are similar to the type 2
packaging of Section C, they are classified in heading 3923, HTSUS.

**HOLDING:**

The bags categorized in Section A and in Section C (type 2) are to be
classified in heading 3923, HTSUS, as "articles for the conveyance or
packing of goods, of plastics", specifically in subheading 3923.29.0000,
HTSUS, as: "Articles for the conveyance or packing of goods, of
plastics, ...: Sacks and bags (including cones): Of other plastics." The
duty rate at the time of entry was 3% *ad valorem*.

The bags categorized in Section B are to be classified in heading 4202,
HTSUS, as "toiletry bags, ... and similar containers, ... of sheeting of
plastics", specifically in subheading 4202.92.4500, HTSUS, which
provides for "toiletry bags, ... and similar containers, ... of sheeting
of plastics ...: Other: With outer surface of sheeting of plastic or of
textile materials: Travel, sports and similar bags: Other." The duty
rate at the time of entry was 20% *ad valorem*.

The bags categorized in Section C (type 1) are to be classified in
heading 3924, HTSUS, as other household articles of plastics,
specifically in subheading 3924.90.5500, HTSUS, which provides for:
"Tableware, kitchenware, other household articles and toilet articles,
of plastics: Other: Other." The duty rate at the time of entry was 3.4%
*ad valorem*.

The bags categorized in Section D that have at least 2 sides or panels
made up of PPNW material, or are comprised wholly of PPNW material, are
to be classified in heading 6307, HTSUS, as "other made up articles",
specifically in subheading 6307.90.9889, HTSUS, which provides for:
"Other made up articles, including dress patterns: Other: Other: Other:
Other: Other." The duty rate at the time of entry was 7% *ad valorem*.
In cases in which PPNW material makes up less than two panels or sides
of a bag, such bags are classified in Chapter 39, under either heading
3923 or 3924, depending on their characteristics, in either subheading
3923.29.0000 or 3924.90.5500, HTSUS. Bags made of PVC and PPNW that have
no essential character are to be classified in heading 6307, HTSUS.

You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in a net
duty reduction and partial allowance. In accordance with Section IV of
the Customs [Protest/Petition Processing Handbook]{.underline} (CIS HB,
January 2002, pp.18 and 21), you are to mail this decision, together
with the CBP Form 19, to the protestant no later than 60 days from the
date of this letter. Any reliquidation of the entry in accordance with
the decision must be accomplished prior to the mailing of the decision.

No later than 60 days from the date of this letter, the Office of
Regulations and Rulings will make the decision available to CBP
personnel, and to the public on the CBP homepage on the World Wide Web
at www.cbp.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

> Sincerely,
>
> Myles B. Harmon, Director
>
> Commercial and Trade Facilitation Division