CLA-2 CO:R:C:T 089569 JS
Daniel C. Holland
District Director
U.S. Customs Service
909 First Ave., Rm. 2039
Seattle, WA 98174
RE: Decision on application for further review of protest no.
3001-91-100390 on the classification of polyethylene strip
shopping bags
Dear Mr. Holland:
This is a decision on application for further review of a
protest timely filed on behalf of Fingerhut Corporation on April
17, 1991, against your decision on the classification of
polyethylene strip shopping bags entered under entry number P40-
0021419-2.
FACTS:
A sample of the merchandise at issue, a shopping bag, was
provided for our inspection. It is manufactured in China of
woven polyethylene strips which are laminated (on both sides)
with a clear plastics material. The plastics material is visible
in the interstices of the loosely woven article. The bag has an
unsecured top opening, finished edges and reinforced loop
handles, and measures 17 x 15 x 7 inches.
These goods were classified and liquidated under HTS
subheading 4202.92.3030, which provides for travel, sports and
similar bags, with outer surface of textile materials. The
importer, Fingerhut Corporation, contests this classification.
It contends that the goods are properly classified under
subheading 4202.92.4500, which provides for travel, sports and
similar bags, other, to include plastic coated goods.
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ISSUE:
For the purpose of classification under the Harmonized
Tariff Schedule of the United States Annotated ("HTSUSA"), does
the present merchandise have an outer surface of textile
materials or plastic sheeting.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI), taken
in order. GRI 1 states that classification shall be determined
according to the terms of the headings and any relative section
or chapter notes and, unless otherwise required, according to the
remaining GRI, taken in order. Where 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 be applied, taken
in order.
The goods at issue here were classified under heading 4202,
HTSUSA, as other containers, similar to those enumerated in the
heading, as follows:
traveling bags, toiletry bags, knapsacks and backpacks,
...of plastic sheeting, of textile materials, of vulcanized
fiber or of paperboard, or wholly or mainly covered with
such materials.
Additional U.S. Note 1, Chapter 42, provides in pertinent
part that:
For the purposes of heading 4202, the expression "travel,
sports and similar bags" means goods, other than those
falling in subheadings 4202.11 through 4202.39, of a kind
designed for carrying clothing and other personal effects
during travel, including backpacks and shopping bags of this
heading ...
The present sample is a durable bag which is constructed in the
manner of a shopping bag for the carrying of groceries. In order
for this item to be classified within this heading, however, it
must be "of...or wholly or mainly covered with" either (in this
case) textile materials or plastic sheeting. Under heading 4202,
such a determination is based on what material comprises the
"outer surface" of the material. The Customs and Trade Act of
1990 added Additional U.S. Legal Note (2) to Chapter 42, which
further clarified how classification should be made under the
"outer surface" criteria, as follows:
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2. For the purposes of classifying articles under
subheadings 4202.12, 4202.22, 4202.32, and 4202.92,
articles of textile fabric impregnated, coated, covered
or laminated with plastics (whether compact or cellular)
shall be regarded as having an outer surface of textile
material or of plastic sheeting, depending upon whether
and the extent to which the textile constituent or the
plastic constituent makes up the exterior surface of the
article.
In other words, an article of subheading 4202.92, HTSUSA,
comprised of a plastics and textile combination which is
considered to be textile for classification purposes, shall have
an outer surface of plastic sheeting if the plastic constituent
makes up the exterior surface of the article. Such is the case
here, where the shopping bag is made of woven polyethylene strip
(a textile) that has been coated with a layer of clear
polyethylene (a plastic). There is no requirement that the
plastic coating or lamination be visible to the naked eye as
there is for coated fabrics of 5903. Additional U.S. Note 2
specifically provides that the sole determining factor is the
constituent material of the article's exterior. The bag at
issue, having an exterior which is entirely coated with an outer
surface of plastic sheeting, is therefore classifiable in
subheading 4202.92.4500, HTSUSA.
CONCLUSION:
The sample merchandise is classified in subheading
4204.92.4500, as a travel, sport or similar bag, of textile
materials, with outer surface of plastic sheeting. There is no
textile visa category associated with this classification, and
the applicable rate of duty is 20 percent ad valorem.
Since there is no visa requirement under the classification
indicated, you are instructed to allow the protest in full. A
copy of this decision should be furnished to the protestant with
the Form 19 notice of action.
Sincerely,
John Durant, Director
Commercial Rulings Division