CLA-2 CO:R:C:R:T 953286 jlj

Ms. Carolyn Dzwonar
Heyman Corporation
6045 W. Howard St.
Niles, Illinois 60648

RE: Classification of Christmas gift packs consisting of cotton knit briefs in a decorative plastic bag

Dear Ms. Dzwonar:

In your letter of January 11, 1993, you requested tariff classifications under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for two Christmas Gift Packs to be manufactured in Hong Kong. You submitted a sample of each along with your letter.

FACTS:

The samples submitted are Style 0801 and Style 0301. Style 0801 is a girls' Christmas Gift Pack containing three pairs of girls' 100 percent knit cotton briefs in assorted Christmas prints. The briefs feature an elasticized waist with the words "Osh Kosh" at frequent intervals on the waistband, a small centered bow at the waist and elasticized leg openings. The sizes offered are 2, 4, 6, 8 and 10.

Style 0301 is a boys' Christmas Gift Pack containing two pairs of boys' 100 percent knit cotton briefs in assorted Christmas prints. The briefs feature an elasticized waist with the words "Osh Kosh" at frequent intervals on the waistband and a fly front. The sizes offered are 3, 4, 5, 6, 7, 8 and 10.

The package used to hold each set of briefs is a rectangular clear vinyl bag with a colored, scalloped opening. A knotted drawstring with a sliding bead is used to secure the opening. The vinyl bags are not specially shaped or fitted to contain the briefs.

ISSUE:

How are these Christmas Gift Packs classified under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be according to the terms of the headings and any relevant section or chapter notes.

We must first determine whether the plastic bags are classified separately or with their contents. GRI 5, HTSUSA, which covers cases, containers and packing materials, reads as follows:

(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long- term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

(b) Subject to the provisions of 5 (a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision does not apply when such packing materials or packing containers are clearly suitable for repetitive use.

GRI 5 (a) does not apply to the plastic bags because they are not specially shaped or fitted to contain the panties. GRI 5 (b) applies if the bags are found to be not suitable for repetitive use.

In several court cases under the Tariff Schedules of the United States (TSUS), the courts discussed similar issues. While the TSUS is a predecessor of the HTSUSA, the fact that the cases concern an interpretation of a specific term or phrase of a tariff makes it reasonable to apply the same interpretation to another tariff, i.e., the HTSUSA, when the terminology is essentially the same and used in a similar manner.

In American Express Co. v. United States, 69 Cust. Ct. 209, C. D. 4935 (1972), the court held that suitability means actually, practically and commercially fit for such use. The court further held that suitability does not require chief use, but does require substantial use.

In United States v. F. W. Meyers & Co., Inc., 60 CCPA 134, C.A.D. 1097 (1973), the court also held that suitable for use means actually, practically and commercially fit for such use. It stated that suitability does not require that the merchandise be chiefly used for the stated purpose, but it does require more than evidence of a casual, incidental, exceptional or possible use.

In Holly Stores, Inc. v. United States, 2 CIT 278, Slip Op. 81-117 (1981), the court discussed the TSUS equivalent of GRI 5, General Headnote and Rule of Interpretation 6 (b), TSUS. The court held that, in General Headnote 6 (b), the phrase "designed for, or capable of, reuse" contemplates that the term "reuse" be used in the practical commercial sense of reuse for transportation purposes and not for incidental or fugitive uses.

Following the rationale of these cases, it is reasonable to conclude that the instant plastic bags are not suitable for repetitive use in the Customs sense and that the bags must be classified with their contents pursuant to GRI 5 (b).

The girls' Christmas Gift Pack is classified under the provision for girls' cotton briefs and panties, in subheading 6108.21.0020, HTSUSA.

The boys' Christmas Gift Pack is classified under the provision for boys' cotton underpants and briefs, in subheading 6107.11.0020, HTSUSA.

HOLDING:

The girls' Christmas Gift Pack is classified in subheading 6108.21.0020, HTSUSA, textile category 352, dutiable at the rate of 8.1 percent ad valorem. The boys' Christmas Gift Pack is classified in subheading 6107.11.0020, HTSUSA, textile category 353, dutiable at the rate of 7.9 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Inasmuch as part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U. S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director
Commercial Rulings Division