CLA-2 CO:R:C:F 953077 ALS
Mr. Martin Medema
President
Geri, Inc.
2604 Harvest Drive
Crown Point, IN 46307
RE: Insulated Shopping Bags from Belgium
Dear Mr. Medema:
This is reference to the letter of November 30, 1992, on the
letter of Mr. Russell H. Koenig, CPA, which was countersigned by
you. We are responding directly to you since Mr. Koenig does not
appear to be a licensed Customs broker or otherwise have the
authority to conduct Customs business (see section 1641(b)(1),
title 19, U.S. Code) and he may be subject to a monetary penalty
pursuant to section 1641(b)(6), title 19, U.S. Code.
Also, we are treating your request as a request for
reconsideration of New York Ruling Letter (NYRL) of March 30, 1992,
since your current request was filed prior to the liquidation
(final duty determination) of the entry which is the subject of
your concern.
FACTS:
The article under consideration is a shopping bag. The sample
submitted with the current request measures approximately 10" by
13.5" and is composed of plastic sheeting which has been coated
with a vaporized aluminum. The exterior surface of the bag has a
separate covering of polyethylene plastic sheeting. The edges have
been heat sealed and the top edge of the vaporized - 2 -
aluminum sheeting has been stitched. The bag is carried by means
of a molded plastic self-locking handle. The bag is said to have
an insulating value and is marketed as a premium to be given to
purchasers at retail to carry purchases home and to be subsequently
re-used by the customer. The importer believes the bag should be
classified in heading 3923, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), since it is not of as substantial
a construction as articles enumerated in heading 4202, HTSUSA, and
since it is not manufactured for continued durable use or excessive
weight.
ISSUE:
How is an insulated plastic shopping bag capable of re-use
classified?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by
the General Rules of Interpretation taken in order. GRI 1 provides
that the classification is determined first in accordance with the
terms of the headings and any relative section and chapter notes.
If GRI 1 fails to classify the goods and if the heading and legal
notes do not otherwise require, the remaining GRI's are applied
taken in order.
In considering the proper classification of the article we
noted the information provided regarding the construction of the
bag and its intended use in promotional campaigns because of its
hot/cold properties and its durability. We also considered the
statement in the November 30, 1992, letter that all tests
concerning durability concluded that continued usage of the article
after initial purchase is not probable. The letter indicated that
the bag may only last through several usages.
We also noted the sales literature for the line of bags which
are known as "Isobags". Such literature, among other items of
information, notes that the bags are "re-usable several times."
With the above in mind we examined the applicable headings
and the relative section and chapter notes of the HTSUSA.
Subheading 4202.92, HTSUSA, provides for travel, sports and similar
bags. Additional U.S. Note 1 to Chapter 42 states:
- 3 -
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..."
Legal Note 2(a) to Chapter 42, HTSUSA, excludes "Bags made of
sheeting of plastics, whether or not printed, with handles, not
designed for prolonged use (heading 3923)."
The Isobag is a shopping bag specifically designed to carry
hot or cold food or beverages home from the store while maintaining
the temperature of the bags contents. It is designed and intended
to be a reusable personal effect of the consumer. The question,
however, arises as to whether the article is designed for prolonged
use. We noted that in two dictionaries, the "Second College
Edition, The American Heritage Dictionary" and "Webster's New World
Dictionary of the American Language", the word "prolong" is used
synonymously with the word "extend", to mean continuation beyond
the usual or expected time, a long time. While it appears that the
article under consideration may be covered by heading 4202 in that
shopping bags are specifically named therein, we believe that this
article differs from those shopping bags and the other containers
specified therein.
We consulted Explanatory Note 42.02(EN) to the Harmonized
System which represents the opinion of the international tariff
classification experts. That note specifies that articles to be
classified in heading 4202 must be similar to those noted in the
heading. In this regard we note that such specified articles are
all of the type which can be used for an extended period of time
and they are of substantial construction. Considering that and
noting that the subject article is of rather flimsy construction,
we have concluded that the subject article is intended for limited
use and not for prolonged use. In that sense it is similar to thin
plastic shopping bags or paper bag for ice cream intended for a
single use that one might expect to receive at a super market
without charge and which, while not intended for extended use, are
capable of being reused. We believe that these shopping bags
should be distinguished from substantial shopping bags which a
shopper might purchase and which are not the type of - 4 -
shopping bag normally provided free of charge by a super market.
We have concluded that flimsy shopping bags, such as those under
consideration, are the type bag which EN 42.02(a) indicates are
covered by heading 3923 and not heading 4202, HTSUSA.
HOLDING:
Shopping bags of flimsy construction made of plastic sheeting
which are coated on the inside with vaporized aluminum and on the
exterior with a thin polyethylene coating, whose side and bottom
edges have been heat sealed and whose top edge, where a molded
plastic carry handle is attached to a molded plastic snap strip for
closures, has been stitched are classifiable in subheading
3923.21.0011, HTSUSA, if no single side exceeds 75mm in length or
subheading 3923.21.0019, HTSUSA, if a single side exceeds 75mm in
length. Articles so classified are subject to a general rate of
duty of 3 percent ad valorem.
NYRL 872533 of March 30, 1992, is modified in accordance with
the above holding.
Rulings such as this are effective when issued, as specified
in section 177.9(a), Customs Regulations (19 CFR 177.9(a)). Any
entries for the subject merchandise which have finally liquidated,
may be the subject of a protest in accordance with section 174.12,
Customs Regulations (19 CFR 174.12).
Sincerely,
John Durant, Director
Commercial Rulings Division