HQ 962363

January 19, 2000

CLA-2 RR:CR:TE: 962363 GGD

CATEGORY: Classification

TARIFF NO.: 3923.29.0000; 4202.92.4500

Jason M. Waite, Esquire

Grunfeld, Desiderio, Lebowitz & Silverman, LLP

303 Peachtree Street, N.E.

Atlanta, Georgia 30308

RE: Modification of NY D80975; "Display Bags;" Clear, Unembossed, PVC
Retail

Packaging Less than 4 Mils Thick Not Designed for Prolonged Use; Odd
Shapes,

Cutouts, Hangers, Tabs, Indicative of Single Use; Bags of Kind Normally
Sold on

Own Merits at Retail as Traveling/Toiletry Bags and of Kind Normally
Sold as

Retail Packaging with Contents

Dear Mr. Waite:

In New York Ruling Letter (NY) D80975, issued September 9, 1998, to
Southern Overseas on behalf of The Murphy Group, Inc., Customs
classified four articles described as "display bags" in subheading
4202.92.4500, HTSUSA, the provision for "Trunks\... traveling bags,
toiletry bags\...and similar containers\...: Other: With outer surface
of sheeting of plastic or of textile materials: Travel, sports and
similar bags: Other." You subsequently requested reconsideration of the
ruling. We have reviewed NY D80975 and, with respect to one of the bags,
have found it to be in error. Therefore, this ruling modifies NY D80975.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C.
1625(c) ), notice of the proposed modification of NY D80975 was
published on December 8, 1999, in the [Customs Bulletin]{.underline},
Volume 33, Number 46.

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FACTS:

In your letter dated November 12, 1998, requesting reconsideration of NY
D80975, you take issue with Customs classification of two of the four
bags (hereinafter identified as item numbers one and four), conceding
that the other two bags are properly classified in subheading
4202.92.4500, HTSUSA. The two bags at issue are imported without
contents and are claimed to be ordinary vinyl packaging materials that
are included (at no cost) with the purchase of the article or articles
they eventually will

contain when sold at retail. Sample item number one is a bag or pouch
which resembles an envelope. The bag is essentially composed of clear,
unembossed, polyvinyl chloride (PVC) plastic sheeting. The item measures
approximately 12 inches in width by 6-1/2 inches in height, and the
plastic sheeting material measures approximately 9.5 thousandths of an
inch (9.5 mils) in thickness. Item number one features a flap with a
metal snap closure. The article also has a top center cutout (which
measures approximately 2 inches in length by 1/4 inch in width) through
which a flimsy plastic hanger protrudes. A paperboard card which
advertises the "Wonderbra® convertible backless bra" is included in the
envelope (as an indication of the merchandise to be added after
importation).

Sample item number four is a cylindrically-shaped, drawstring utility
bag that is essentially composed of clear, unembossed, PVC plastic
sheeting. The item resembles a small duffel bag and measures
approximately 7-1/4 inches in height by 3 inches in diameter. The
plastic sheeting material measures approximately 7.2 mils in thickness.
Item number four features a top that may be drawn closed by means of a
braided cord which passes through eight eyelets. A stitched side seam
extends the full height of the bag and the bag's top and bottom have
stitched PVC edging.

ISSUE:

Whether the articles are classified under heading 4202, HTSUSA, which
covers, in part, traveling bags, toiletry bags, and similar containers;
or under heading 3923, HTSUSA, as articles for the conveyance or packing
of goods, of plastics.

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 headings and legal notes do not otherwise require, the remaining GRI
may then be applied. The Explanatory Notes (EN) to the Harmonized

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Commodity Description and Coding System, which represent the official
interpretation of the tariff at the international level, facilitate
classification under the HTSUSA by offering guidance in understanding
the scope of the headings and GRI.

Among other merchandise, chapter 42, HTSUSA, covers travel goods,
handbags and similar containers. Among other items, heading 4202
provides for "\...traveling bags, toiletry bags\...and similar
containers." The exemplars named in heading 4202 have in common the
purpose of organizing, storing, protecting, and carrying various items.
In pertinent part, legal note 2(A)(a) to chapter 42, HTSUSA, states:

> \...heading 4202 does not cover:
>
> Bags made of sheeting of plastics, whether or not printed, with
> handles, **not designed for prolonged use** (heading 3923) (Emphasis
> added.)

Chapter 39, HTSUSA, covers plastics and articles thereof. In pertinent
part, note 2(ij) to chapter 39, HTSUSA, states that "\[t\]his chapter
does not cover\...trunks, suitcases, handbags or other containers of
heading 4202." Among other merchandise, heading 3923, HTSUSA, covers
"Articles for the conveyance or packing of goods, of plastics\...." The
EN to heading 3923 indicate that the heading covers all articles of
plastics commonly used for the packing or conveyance of all kinds of
products, including sacks and bags. The EN also state that the heading
excludes containers of heading 4202.

You essentially contend that, because item numbers one and four are
designed, intended, and likely to be used principally as retail
packaging for unique products, they are not designed for prolonged use
and are excluded from classification under heading 4202, HTSUSA. You
cite to several Headquarters Ruling Letters (HQ), including HQ 960009
and HQ 959679, both of which concern the issue of whether certain
containers composed of PVC plastic sheeting are designed for prolonged
use. Although intended use is mentioned in each of the cited rulings,
you suggest that Customs has based these and other classification
determinations upon whether plastic bags that are capable of reuse are
**intended** to be reused. We do not agree.

Customs is often presented with other subjective criteria to consider,
and may weigh the uncertain relevance of whether a bag's seams are
heat-sealed or sewn; whether eyelet holes are reinforced with metal or
heat-sealed grommets; whether a bag has drawstring, snap, or zipper
closures; or features handles, piping, printing, opaque sides; etc.
While viewing certain features such as hangers, hanger holes or cutouts,
plastic tabs with holes for hanging display, cutouts permitting
pre-purchase handling of contents, odd/awkward shapes, etc., as
indications that retail packaging bags are not

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designed for prolonged use, Customs has found 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.

These were the significant factors in HQ 960009, issued October 16,
1997, in which this office classified several bags under heading 4202,
finding that "\...the bags are not of a kind normally used in the
packaging of toiletries/cosmetics and are of a kind sold at retail on
their own merits as travel or toiletry bags." We looked to the same
determining factors in HQ 959679, issued May 8, 1997, and found that
"\[t\]he bag is of a

kind sold at retail on its own merits\....It is similar to PVC travel
bags either sold on their own or with other personal effects, cosmetics
or toiletries. It is not of a disposable kind normally used to
temporarily hold its contents."

In order to more objectively distinguish bags of clear, unembossed, PVC
plastic sheeting that are not designed for prolonged use from those that
are, Customs will additionally consider the thickness of a bag's plastic
sheeting as a factor in the classification of bags of a kind both sold
on their own merits and sold as packaging. Customs has long classified
under heading 4202, garment bags composed of **embossed** vinyl or PVC
plastic sheeting which measures four mils or more in thickness, finding
that such thickness usually denotes a durably constructed article that
is designed for prolonged use and travel. Customs has also determined
that garment bags composed of embossed vinyl or PVC plastic sheeting
which measures less than four mils in thickness are generally less
durable and not designed for prolonged use. Those bags have been
classified under headings 3923 and 3924, HTSUSA. See HQ 962225, issued
May 21, 1999, HQ 961092, issued March 24, 1998, HQ 960411, issued
October 7, 1997, HQ 955470, issued February 17, 1994, and HQ 082463,
issued September 25, 1989. Since embossed vinyl and PVC garment bags are
not normally used to **display** articles sold at retail, Customs does
not generally consider the features indicating that clear PVC bags are
not designed for prolonged use (hangers, hanger holes, cutouts, etc.) to
be applicable to garment bags.

Although the Customs laboratory has concluded that the formula
recommended by the American Society for Testing and Materials (ASTM) D
1593, "Specification for Nonrigid Vinyl Chloride Plastic Sheeting," must
be used to determine the thickness of **embossed** plastic sheeting, the
laboratory has further advised that for routine testing (e.g.,
determining the thickness of **unembossed** PVC plastic sheeting),
standard dead weight methods may be used. See ASTM D 1593 "Test Methods"
section 10.1.3.

Therefore, to determine the classification of bags, sacks, or pouches
that are composed of clear, unembossed, PVC plastic sheeting, Customs
will consider plastic sheeting which measures less than 4 mils in
thickness to be generally indicative of an

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article that is not designed for prolonged use. Customs will also
consider plastic sheeting which measures 4 mils or greater in thickness
to be generally indicative of a 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. noted
above).

In this case, despite the fact that the PVC plastic sheeting of item
number one measures 9.5 mils in thickness, the presence of the top
center cutout and flimsy plastic hanger indicates that the bag is a
container for goods that will be displayed on a rack for

sale at retail. Although the thickness of the plastic sheeting indicates
durability, the package is designed to withstand any number and variety
of pre-sale manipulations by shoppers, and not for prolonged use after
sale. If imported separately, we would consider the plastic hanger
itself to be an article for the conveyance or packing of goods. In this
case, the hanger is designed to suspend the bag with which it is
imported and help to display a product. The hanger and bag components
would not normally be offered for sale in separate parts. Together they
comprise a composite article, the essential character of which is
imparted by the bag component. The complete "display bag" is not of a
kind normally sold at retail on its own merits, but is of a kind that is
sold at retail with specific contents. Item number one is not designed
for prolonged use (after its original contents have been removed for
consumption), and it is therefore excluded from heading 4202 by note
2A(a) to chapter 42, HTSUSA. Item number one is properly classified in
subheading 3923.29.0000, HTSUSA.

Although item number four may be intended merely for use as unique
retail packaging to favorably present a product, enhance the likelihood
of its sale, and carry it from store to home, the bag is of a kind
normally sold at retail on its own merits as a traveling or toiletry
bag. The item is not of a kind normally sold at retail as packaging with
its contents and it is substantially constructed of plastic sheeting
which measures 7.2 mils in thickness. Unlike item number one, this bag
has no cutout, hanger, or other feature which would indicate that the
bag is not designed for prolonged use. We find that item number four is
similar to the containers of heading 4202, HTSUSA, and that it is
classifiable thereunder. The article is thus precluded from
classification under heading 3923 by note 2(ij) to chapter 39, HTSUSA.
Item number four is classified in subheading 4202.92.4500, HTSUSA.

HOLDING:

The "display bag" identified as item number one is classified in
subheading 3923.29.0000, HTSUSA, the provision for "Articles for the
conveyance or packing of goods, of plastics\...: Sacks and bags
(including cones): Of other plastics." The general column one duty rate
is 3 percent ad valorem.

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The "display bag" identified as item number four is classified in
subheading 4202.92.4500, HTSUSA, the provision for "Trunks\...traveling
bags, toiletry bags\...and similar containers\...: 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.

NY D80975, issued September 9, 1998, is hereby modified with respect to
the classification of item number one.

NY D80975, issued September 9, 1998, is hereby modified with respect to
the classification of item number one. In accordance with 19 U.S.C.
1625(c), this ruling will become effective 60 days after its publication
in the [Customs Bulletin]{.underline}.

Sincerely,

John Durant, Director

Commercial Rulings Division