CLA-2 RR:TC:FC 959679 ALS
Port Director of Customs
U.S. Customs Service
423 Canal Street, Room 200
Protest Unit
New Orleans, LA 70130
RE: Application for Further Review of Protest 2002-96-100009,
dated December 29, 1995, Concerning A Plastic
Drawstring Bag
Dear Port Director:
This ruling is in reference to the protest that was filed
against your decision of October 13, 1995, regarding an entry for
a plastic drawstring bag.
FACTS:
The article under consideration is a drawstring tote bag,
item 1541. It is wholly manufactured of a clear polyvinyl
chloride (PVC) plastic sheeting material and has a braided cord
drawstring closure at the top. The drawstring is passed through
metal or plastic grommets. The bag measures 15 inches high with
a 7.5 inch diameter base and is decorated with items one might
expect to find on any article directed at toddlers, e.g., animal
caricatures, balloons, balls. The base is composed of plastic
covered paperboard and all edges and seams are heat sealed. The
bag is a product of China and is imported empty. Subsequent to
importation the bag is filled with a 27 piece toddler feeding set
consisting of learning to drink cups, food storage and feeding
containers, a plastic fork, a plastic spoon, etc., and then sold
at retail as a unit.
ISSUE:
Is the subject plastic drawstring bag of a type similar to
that used for packaging or to that used for travel, sport, etc.?
- 2 -
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) 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 headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
The importer has suggested that the drawstring bag
should be classified in subheading 3923.29.0000, HTSUSA, which
provides for "Articles for the conveyance or packing of goods, of
plastics;...of plastics: Sacks and bags, of other plastics." The
entry covering the subject bag was liquidated under subheading
4202.92.4500, HTSUSA, the provision for travel, sport and similar
bags, with outer surface of plastic sheeting. We note that the
heading 3923 covers articles which are not designed for prolonged
use. In this regard, it is noted that Note 2(A)(a) to Chapter
42, HTSUSA, specifies that: "Bags made of sheeting of plastics,
whether or not printed, with handles, not designed for prolonged
use (heading 3923)." By implication, bags composed of plastic
sheeting which are designed for prolonged use are classifiable in
Heading 4202. Also, note 2(ij) to Chapter 39, HTSUSA, specifies
that more substantial items are classifiable in Chapter 42,
HTSUSA, and not Chapter 39. It provides exemplars of the such
articles.
In this regard, we note, for example, Headquarters Ruling
Letter (HRL) 953077, dated April 26, 1993, in which we excluded
bags composed of plastic sheeting from heading 4202, HTSUSA,
despite the fact they could be re-used "several" times. We
reasoned that the bags were similar to plastic or paper shopping
bags which were capable of re-use, but intended for a single use.
However, in this case we are of the opinion that the bags,
decorated as previously noted, have been designed for prolonged
use. We note that these bags are imported empty and that they
are subsequently filled with a 27 piece toddler feeding set and
then sold at retail as a unit. The bag is of a kind sold at
retail on its own merits and is not of a disposable kind normally
used for packing of various feeding utensils, cups, plates or
containers. The contents of the feeding set are for prolonged
use and are similar to items which may be individually purchased
and utilized over a prolonged period. The bag is of a kind
designed to contain many various personal effects such as beach,
pool and gym accessories, toiletries, garments, etc. The bag,
when filled subsequent to importation, provides storage,
protection, organization and a degree of portability for the
articles placed therein. 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 Totes, Inc. v. United States, Slip Op. 94-154, the Court
of International Trade (CIT) noted that if an article exhibits
the characteristics which are common to all the exemplars, it is
properly classified in the same heading as the exemplars. The
CIT held that heading 4202, HTSUSA, did not have a requirement
that an article be for travel although portability is a feature - 3 -
which could be utilized for classification on the subheading
level. The Court made no distinction as to quality or duration
for which the article is designed to be used. It noted a PVC
garment bag of the kind designed to be carried over the shoulder
by means of a hanger and either given to purchasers of a garment
upon purchase or sold at retail on their own merits as an example
of an article which is of a kind similar to those of heading
4202, HTSUSA. The instant PVC bag is similar.
Holding:
Bags of plastic sheeting which are designed to be filled
with various items subsequent to importation, to provide for the
storage, protection, organization and portability of those items
and are designed for prolonged use are classifiable in subheading
4202.92.4500, HTSUSA. Articles so classified are subject to a
general rate of duty of 20 percent ad valorem.
Since the classification indicated above is the same as the
liquidation classification, you are instructed to deny the
protest in full.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
In accordance with Section 3(A)(1)(b) of Customs Directive
099 3550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this decision
should be provided by your office to the protestant no later than
60 days from the date of this letter. Any reliquidation of the
entry in accordance with this decision must be accomplished prior
to the mailing of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to Customs personnel via the Customs
Ruling Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division